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it as an oath of that description, whatever may be its particular words. For the terms of the Act are " purporting or intended to bind;" purporting refers to the meaning of the oath; intended refers to the intention of the party. An oath purporting to bind, is intended by the party for that purpose. The purport of the oath, and the intention of the party, may be different; but the statute makes him liable for both; not merely the meaning of the words employed, but his own intention (possibly a secret intention), in using them, which may be much more mischievous or wicked than the plain or true meaning of the words. Accordingly, in the English case, which was tried upon the 37th of the King, the meaning, object, and intention of the party, distinct from the meaning of the words, was allowed to be proved. There was clearly room in that Act for the construction put upon it by the learned Judge who presided at the trial. But whatever be the construction of that Act, there is not the least room for such a construction in the present case, where the words, as well as the objects of this statute, are so very different. The words purporting, or intending to bind, plainly require an oath, which purports or intends to bind, and refer exclusively to the intending or intent of the oath, without regard to the intending or intent of the party, farther than his intent to administer or také that oath. And this was apparently admitted by Mr Solicitor General, when he observed, that the meaning, pur port, and intention of the oath, are to be referred to in this argument, and not any conspiracy or extraneous circumstances. Thus, there is a reason sufficiently evident for excluding a proof of circumstances where the indictment is laid upon the 52d of the King, which might be admitted where the indictment is laid on the 37th of the King. And if it be competent by the 37th to prove the intent of the party by circumstances which do not appear from the oath, it was intended by the 52d that no evidence beyond the terms of the oath itself should be allowed for proving the intent of the party.
If the observations I have now made are well founded, the public prosecutor is entirely wrong in attempting to introduce in the minor proposition of the indictment a long detail of circumstances, with no other object than to establish the supposed wicked intent of the prisoner, by evidence that is extraneous to the administering of the unlaw ful oath. The prosecutor ought to have confined himself to that charge; and I must again observe, that he had it in his power to frame an indictment without objection, by the
proper recitals of the statute and of the oath, with proper allegations that the oath was prohibited by the Aet of Parliament. But instead of adopting this plain method of proceeding, he has charged the pannel with an indictment that is exposed to innumerable objections,
The objection which I have just referred to should be sufficient to cast the indictment, if no other could be stated. But I shall remark upon some of the other objections. A good deal was said upon the competency of a general charge of high treason made in an indictment, without pointing out any particular species of treason. There can be no doubt whatever, that where the party is to be tried for the crime of high treason, a general charge of high treason made against him in the indictment would be good for nothing, and the charge would at once be dismissed. For there are so many different kinds of high treason, each of them distinguishable from all the rest, that it would be just as well to charge a man with having committed a crime, without saying what crime, as to charge him with having committed treason, without saying what treason. But it seems to have been thought by the prosecutor that in this indictment it is sufficient to refer to high treason generally without distinguishing between one treason and another, because the pannel is not to be tried for committing high treason, but for having administered an oath, purporting or intending to bind the person taking the same to commit treason. In a charge of this kind, it has been thought unnecessary to specify the treason which the oath purported or intended to bind the person taking the same to commit. But it seems to be obvious, that there is precisely the same reason to specify the treason in this case as in a trial for high treason itself. If it is unnecessary to specify the treason in this case, would it be sufficient to allege, that the oath purported or intended to bind the person taking the same to commit a crime, without specifying what crime, or giving any notice whatever to the pannel of the nature of that offence, which the oath purported or intended to bind the person taking the same to commit? It is plain, that in such a case the pannel would have no notice at all of the crime for which he was to be tried. An oath, binding the person taking it to commit a crime, may in every case be criminal; but an oath, leading to one crime, must always be distinguished from an oath leading to another, and a different crime. A defence completely prepared against the allegation, that the oath led to the commission of one crime, would be no defence at all, if the prosecutor
should not insist on that allegation, but on a different allegation; namely, that the oath led to the commission of another crime. The pannel might be prepared to defend himself as to the application of the oath to one-half of the crimes in the Statute-Book, and yet, having no distinct notice of the prosecutor's views, might be in no state of preparation to defend himself as to the application of the oath to another crime, of which he had no notice, and of which he had never thought. The same consideration shews, that among the different species of treason, that particular species should be pointed out in the indictment, upon which the prosecutor is to insist that the oath was applicable. It seems then to be indisputable, that the species of treason should have been alleged or assigned in this indictment, and that the total want of the specification in it is as objectionable as it would be in a trial for high treason. The objection is founded on the great and indispensable rule in criminal justice, that the pannel ought to have notice of the precise accusation against him, and the want of such notice in this indictment makes the case precisely the same as if the prosecutor had attempted to proceed without an indictment at all.
Another objection to the indictment was strongly and eloquently urged by Mr Cranstoun, that you cannot, for the proof of a crime that is charged, prove any other crime that is not charged. This was stated, on the authority of Mr Burnet, and of long practice. But one or two cases were cited against us by the Counsel for the prosecution. I do not admit that these cases were correctly stated; but, at all events, they do not establish that the prosecutor is entitled to prove the extraneous circumstances alleged in the present case. One of the cases related to the uttering of forged notes within Scotland, and it was said, that in order to prove the charge of uttering in Scotland, it was competent to prove the forgery of the notes, although that crime was committed in England. That was a case of crimen continuum, in which the criminal act was begun in one place, continued and completed in another. If I recollect right, a case occurred some years ago, which a proof of one crime to prove another was allowed, and a person was convicted on a proof of that description. But that conviction was not approved of in another quarter, and whenever the circumstances attending it were known, the man got a pardon, in respect of the manner in which his trial had been conducted. One of your Lordships will probably support me in this account of the case to
which I now allude. I do not recollect the name of the party.
LORD GILLIES.-My general recollection goes along with what Mr Clerk has stated; but I do not particularly recollect the circumstances.
MR CLERK.-There are no dicta in the Work of Mr Hume, nor in that of Sir George M'Kenzie, inferring that a crime may be proved by another crime which is not libelled; and the authority of Mr Burnet, who was a very attentive observer of the proceedings in criminal cases, is directly against the doctrine. He lays it down expressly, that one crime cannot be proved by another. Thus the authority as well as the justice of the case, is on the side of the accused. But there is another objection to a proof of the conspiracy here mentioned. The allegation is in substance a charge of high treason; and would your Lordships allow such a charge to be proyed, under this indictment, in direct contradiction to the Act of Parliament upon which you try crimes of treason? Without the intervention of a grand jury, treason cannot be tried. But if it is utterly incompetent to prove an allegation, it must be equally incompetent to make the allegation. No party is entitled to allege what it is not competent for him to prove. And, if the public prosecutor cannot be allowed to prove the crime of treason, it is impossible for him to proceed on this indictment.
To another objection, no sufficient answer has been made, that if the proof of treason is entered on, the trial is a public precognition; and if the result in this present trial does not satisfy the prosecutor, the pannel may be tried again upon the same facts. What was said in answer to this? From the very terms of the Act of Parliament the pannel cannot be tried again for the same offence. What is the same offence? The prisoner is now to be tried for administering the oath, and not for the crime of high trea
The two crimes are altogether different. The prisoner, if he is acquitted, cannot be tried for high treason, on account of his having administered a treasonable oath; but there is nothing in the statute against his being tried for a separate treason, extraneous to the charge of having administered the oath. But, according to the idea of the public prosecutor, the oath may be connected with overt acts of treason, which might be distinctly and separately charged; and if it were permitted to prove these overt acts
incidentally in this trial, the prisoner might, on such a precognition, be afterwards tried for treason.
Another objection is, that the requisite specification of the alleged conspiracy has been withheld by the prosecutor, the prisoner not having been favoured with the names of any of the persons alluded to as engaged in the conspiracy; and this objection is of itself fatal to the indictment. It is stated in the indictment, that the prisoner wickedly, &c. conspired, &c. with other evil disposed persons, to break and disturb the public peace, &c. But no one of the persons engaged in the conspiracy are mentioned. Why? We have not even been told that the public prosecutor does not know the names of these supposed persons; but if he was ignorant of their names, he should have said so; for in an indictment the public prosecutor should give a full detail of what he knows to the pannel, for the preparation of his defence. When a fact that should be stated, if known to the prosecutor, is unknown to him, he should at least state that such fact is unknown to him. He should do every thing to apprise the accused of the nature of the proof which he has to meet. Where that is not fairly done, the prisoner is entitled to object that he has not received the notice on the subject to which he is entitled by law. If a pannel be charged with a wicked conspiracy, he should be informed of the other persons with whom he is supposed to have been engaged, if the prosecutor knows who they are; and he is presumed to know them, if he does not state that they are unknown to him. How hard would it be if the law were otherwise? A conspiracy charged may be one of fifty supposed conspiracies. If the conspiracy is not identified by the names of the persons engaged in it, how can the prisoner know what the prosecutor really means to charge?
The other objections to this part of the indictment, though they may be less material, are still of very great importance, and their validity is recognized by Mr Hume, who employs many pages of his valuable work upon questions of this description.
The gentlemen opposite admit that fair and reasonable notice of facts must be given, and that Mr Hume says so. He does indeed say so. But, although they acknowledge his authority, they assert, that such notice is not always necessary. How does this agree with the opinion of Mr Hume, who says expressly that where the public prosecutor has it in his power to mention particulars, and where his doing so may be essential to the information of a pannel for