that they can mean nothing but treason, and he will not allow that any other meaning can be put upon them. Even the uneducated people, for whose use the oath was contrived, must, without all doubt, have understood, that it was the purport of these words to bind them to commit treason. These assertions are finely exemplified by the abortive attempt made in the indictment, to put any intelligible meaning upon the words. The prosecutor has not been able to apply them to any description of treason, excepting that constructive treason, which he would revive, after it has been abolished for several centuries. And here it is proper to notice an inexcusable gloss in the indictment, as to the meaning of the words now under consideration. The words of the oath are, "I will support the same to the utmost of my power, either by moral or physical strength;" but it is alleged in the indictment, that the treason was to be committed, "by effecting by physical force the subversion," &c. Here the word strength is changed into the word force, a word of a different meaning. It has been said, that the words are synonymous. If that is the case, why change the one for the other. But they are not synonymous. It is very true, that on some occasions either word may be used, without much, if any, difference of meaning. But the same thing may be said of words, that so far from being synonymous, have significations that are very different. The distinction between strength and force is quite obvious. Strength refers to power,-force to the violent use of that power. Force always implies violence, but strength does not. A precept in the holy Scriptures is thus expressed, "Thou shalt love the Lord thy God with all thy heart, and with all thy strength." How would this passage read with the word force instead of the word strength? To support with moral and physical strength does not mean that violence is to be used at all. So far from meaning that violence is to be used in attacking others, it does not necessarily mean that violence, which may be used in resisting the violent attacks of others. Thus, it has been assumed, with very little ceremony indeed, that the moral and physical strength referred to in this oath, were to be applied for the purposes of treason. It seems to be just as reasonable to take it for granted, that the moral and physical strength were to be employed in the commission of any other crime. Can a reform in Parliament be promoted only by the commission of treason? No, it will be answered; but treason, if it was useful or necessary, was to be committed. There, if the parties were not to shrink from the crime of treason if necessary for these purposes, it must be supposed that they would have been equally ready for the commission of any other crimes. But, I ask, whether, according to the meaning of this oath, the parties who took it were bound to commit murders, robberies, thefts, every sort of crimes, in order to promote reform in Parliament? Is it possible that any human being can be so destitute of charity and common sense as to put that construction upon the oath? When I bind myself to forward the purposes of reform to the utmost of my power, by moral and physical strength, am I bound to commit all or any one of the crimes which have been mentioned? Must I rob on the highway in order to promote annual Parliaments and universal suffrage? And if the oath is not an obligation to commit crimes generally, is it not absurd to say, that it is an obligation to commit the greatest of all crimes, the crime of treason? To maintain a proposition so monstrous, is the best example to prove the danger and atrocity of the constructive charges of treason. Suppose one of the persons who are stated in the indictment to have been engaged in a conspiracy, but whose names are not communicated, had been told that the oath being an obligation to support the plan of annual Parliaments and universal suffrage to the utmost of his power, by moral and physical strength; so he was required to commit some great crime, an assassination for example. If such a conversation among these conspirators can be supposed, the person addressed might surely answer, I engaged to do every thing in my power to obtain annual Parliaments and universal suffrage, but I have not engaged to do any thing that is against law-there is no such obligation in the oath. Could any one of the fraternity have replied, you are bound by the obligation, and must now perform the part you have undertaken: This assassination will support the cause of universal suffrage; and it is an act within your power? This reasoning would hardly serve; and if there is no obligation to commit a great crime, there is just as little to commit a small crime. The oath does not purport or intend to bind the party taking it to commit any crime whatever, or even to enfringe the slightest rule of morality. Nor is there any difference between a mere paction in such a case and an obligation strengthened by an oath, how tremendous soever. As to the present question, the cases are quite the same. But it is said, that if the intentions of the parties were so in nocent, why take an oath? Why this obligation to secrecy? I have answered that already. I do not know why there was an oath at all. I do not know why it was an oath of secrecy. I have heard, indeed, that some politicians have not the most absolute confidence in each other. There are animals known by the name of rats, of whom I some times read in the newspapers, who are said even to infest a certain great assembly. Some of those who were engaged in this association may perhaps have suspected that animals of that species might get amongst them, and, in order to prevent such an accident, they had recourse to the oath. Why was there an oath of secrecy? I see no reason why they should have bound themselves to secrecy. But is secrecy to imply the greatest atrocity of conduct? If they wished for secrecy, does it necessarily follow that they were to commit treason? Many enterprises require secrecy. That there were persons whom they did not wish to offend, might be a sufficient reason for their secrecy. It would be very unsafe, indeed, to infer the illegality of any combination from the circumstance that it is held together by an oath of secrecy, but it would be still more unsafe to infer a treasonable conspiracy upon such flimsy grounds. But the question is not, Whether the obligation to secrecy was right or wrong? The only question is, Whether there is in this oath an obligation to commit treason? The question is not, Whether the pannel committed treason in any way? but it is, Whether there is in the oath any obligation to commit treason? On these questions, I think it unnecessary to trouble your Lordships with any farther observations. LORD JUSTICE CLERK.-After the uncommonly able arguments which you have heard from both sides of the Bar, the question for your Lordships' consideration is, In what manner you are now to proceed in determining whether the present is a relevant indictment? LORD HERMAND.-I had no doubt in my mind, when I first saw the indictment, that it was relevant. But a great deal has been said to-day on the competency of alleging one crime in order to prove another. I have formed no opinion on the objections which have been stated to the indictment; and being desirous to understand them thoroughly, I wish to see them discussed in Informations. Several authorities are cited, particularly by Mr Cranstoun, and it would be proper to have them fully stated, before giving any opinion with regard to them. LORD GILLIES.-I am of the same opinion, and strongly wish to see Informations. LORD PITMILLY.-I am particularly anxious to consider that point which we have heard debated, and which is of general importance-I mean, the question as to the admission of the narrative part of the indictment to proof. With regard to the other objections, I have read all the authorities, and would have been ready to give my opinion upon them. It does not appear to me, that the cases of forgery alluded to are analogous to this case. If special acts of treason had been stated, the introductory part of the narrative might have been admitted to proof. But as the minor charge is not treason, but a different crime, my mind is not yet made up to the opinion that the indictment is relevant. As far as I am able to judge, I cannot help thinking that the pannel, if acquitted on this indictment, might be again tried for treason. LORD JUSTICE-CLERK.-I am much in the situation of my brother who has last spoken. In reference to the meaning of the oath, I have given great attention to what has been said; and I had looked into authorities, besides those referred to to-day. As to the other point, it has been most ably argued, and is deserving of most serious and deliberate attention-whether it be competent to let the public prosecutor into a proof of the narrative of this indictment. That is a point which, in reference to this important case, and all other cases of a similar nature, is deserving of the most mature consideration. This, too, is the first time that an indictment has been brought before us founded upon this statute. I am quite clear, therefore, that the solemn and regular manner of deciding the points in question, is to have Informations prepared, in which the arguments may be fully exhausted. INTERLOCUTOR. 9th April 1817. "The Lord Justice-Clerk, and Lords Commissioners of Justiciary, ordain parties' procurators to give in Informations upon the relevancy of the Indictment, to see and interchange these Informations, and to print, and lodge the same with the Clerk of Court in order to be recorded, and that within three weeks from this date: Continue the diet against the pannel till Monday the 19th day of May next, |