18 Hugh Dickson, present prisoner in the Castle of Edinburgh. 19 Peter Gibson, present prisoner there. 20 John McLachlane, present prisoner there. 21 William Simpson, present prisoner there. 22 James Hood, present prisoner in the tolbooth of Glas gow. 23 John Campbell, present prisoner in the Castle of Edin burgh. 24 Thomas Sinclair, present prisoner there. H. HOME DRUMMOND, A. D. LIST OF ASSIZE. County of Edinburgh. Francis Carteret Scott of Ballerno. Richard Wooley of Whitehouse. Robert Lyle, baker there. 5 John Wood, merchant there. John Brown, farmer, Carrington. Andrew Johnston, farmer, Primrosebarns. County of Haddington. William Aicheson, junior, of Drummore. 10 William Hay, farmer, Howden. County of Linlithgow. William Glen of Mains. William Dawson, younger, Bonnytoun. 15 John Trotter, farmer at Stacks. Robert Taylor, residing at Blackness. City of Edinburgh. Robert Fraser, jeweller in Edinburgh. Alexander Ainslie, saddler there. Francis Davidson, confectioner there. Town of Leith. John McKenzie, merchant in Leith. 45 John Glover, wright there. AD. GILLIES. D. MONYPENNY. LORD ADVOCATE.-From certain circumstances, I find it proper to move the Court to desert the diet against John Keith pro loco et tempore. He will therefore be committed to prison upon a new warrant. [This motion was accordingly agreed to.] LORD JUSTICE CLERK.-William Edgar, What do you say to this Indictment?-Are you guilty or not guilty of the charges contained in it? WILLIAM EDGAR.-Not guilty, my Lord. Mr CRANSTOUN.-I am of Counsel in this case for the prisoner at the bar. The indictment, which your Lordships have just heard read, charges the prisoner with a capital crime, that of administering an oath purporting or intending to bind the takers to commit the crime of treason. My Lords, this is not a point of dittay recognized by the ancient and common law of Scotland; neither the nature of the offence itself, nor the manner in which it is to be charged, is pointed out by any precedents or authorities familiar to your Lordships. It is a charge introduced by a special statute, and recently introduced; and, so far as I know, no trials have taken place hitherto upon that statute in Scotland, and according to your forms. It will be admitted, that this crime is of a nature peculiarly delicate. The life of the prisoner at the Bar may depend on the construction to be put on words alone, without reference to overt acts by which they may receive a clear and unambiguous interpretation. To administer an oath without judicial authority is perhaps not a very commendable practice; and in a moral point of view it may sometimes be improper, as tending to lessen the obligation of an oath, when thus applied to frivolous or improper subjects, or on frivolous and improper occasions. But, my Lords, at the same time, it is not in itself an illegal thing-it is prohibited by no law; and I understand and am well informed that it is a common and daily practice. It is practised in many associations and fraternities; for example, in masonic meetings, when there is not the least intention on the part, either of the persons who administer, or of the persons who take the oath, on the one part to impose, or on the other to undertake an unlawful obligation. To make a common practice of this nature the ground of a capital punishment, when the guilt or innocence of the act depends on the interpretation of the mere words used, may appear not perhaps altogether in unison with the mild and equitable spirit of British jurisprudence. Your Lordships are well acquainted with the statute I. Mary, chap. 1st, which swept away from the law that mass of constructive treasons by which it had been previously polluted-a statute held by the nation at the time it was enacted, as one of the greatest blessings ever conferred by the Legislature, and still looked up to by their posterity with admiration and gratitude. Though constructive treason was thus abolished, yet the statute upon which the present indictment is founded tends to introduce a capital felony, which, though not punished as treason, is yet punished with death, the ultimum supplicium of the law. This statute was no doubt passed at a time when bands of armed men were committing every species of atrocity, when they were burning, robbing, and murdering, and in particular when they were compelling persons by force to swear oaths, unquestionably and clearly imposing an obligation to commit felonies. In this state of things, a speedy and efficacious remedy was necessary; and no doubt this statute was passed with the best intentions, and may have been productive of the most salutary consequences. All this being allowed, yet considered as a standing rule, incorporated in the criminal law of Scotland, and applied to other occasions than those contemplated by the Legislature, it was not perhaps penned with all the caution requisite, and may involve principles which it would not be very safe to admit permanently into our system of jurisprudence. But it is not your Lordships' province to judge of the merits of the enactment, and far less am I entitled to pronounce an opinion upon that subject. It makes part of the statute law of Scotland, and that is enough. But although I am not entitled to inquire into the expediency of the law, it is my right, and it is my duty, to inquire in what manner the words of it shall be construed-in what manner, being part of the criminal law of Scotland, it shall be applied and accommodated to our form of judicial proceedings. And after fully considering the subject in this more limited view, I trust I shall be able to satisfy your Lordships that the libel in this case is not relevant, according to the principles of the criminal law of Scotland. This is a subject of the utmost importance, and to which the attention of your Lordships is now most earnestly requested. In this indictment the major proposition sets forth, that, "Albeit, by an act passed in the fifty-second year of his present Majesty's reign, entitled, An act to render more effectual an act passed in the thirty-seventh year of his present Majesty, for preventing the administering or taking unlawful oaths,' it is, inter alia, enacted, That every person who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at the administering of any oath or engagement, 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, on conviction thereof by due course of law, be adjudged guilty of felony, and suffer death as a felon, without benefit of clergy.'' There are then other clauses of the statute recited in this major proposition. With regard to the major proposition of this indictment, I have no objections to make to it. It is correct in reciting the clause of the act constituting the crime which is now to be tried; and, therefore, in considering this proposition, the only thing to be attended to is, the nature of the crime which is here stated to be punishable with death? It is the administering an oath, "purporting or intending to bind the person taking the same to commit treason or murder, or any felony punishable with death." Upon reading this clause, your Lordships will be satisfied, That it is not sufficient to constitute this crime that an oath was administered-it is not sufficient that the person administering that oath had criminal intentions at the time—or that he was engaged at the time in criminal practices-it is not enough that the person who takes the oath intends to commit, or is in the course of committing criminal practices. All that is insufficient to constitute the crime here set forth. It is necessary, it is the essence of the crime, that the oath administered shall itself purport or intend to bind the taker to commit the crimes specified in the statute. It is quite possible that two persons may be actually engaged in committing the crime of treason, and while thus occupied, that one of them, with a view of practising a deceit on those who were present, and of ensnaring them into the traitorous conspiracy, should administer an oath to his associate, under the pretence of binding him to commit the treaBut if that oath did not in fact impose the obligation, it could not warrant a conviction under this statute. It might be an overt act of treason, and all the persons present, he who administered the oath, he who took the oath, and the spectators, might be punishable as traitors, yet still an indictment under the present statute could reach none of them; for to make the statute apply, it is essential that the oath administered purports or intends to bind the party taking it to commit treason or felony. An oath not containing that obligation, however nefarious and detestable in itself, may be the ground of a different prosecution, but it cannot be the ground of the charge now before your Lordships. All this is too clear to require any illustration; it must be manifest to every one who reads the words of the statute. son. Having said thus much on the major proposition of the indictment, we now come to consider the minor proposition. Here, as in other cases, there are two subjects of inquiry; 1st, Whether the facts set forth in the minor amount to the charge in the major? and, 2d, Supposing that they do, whether they are specified with that precision and minuteness which are required, according to the law of Scotland, to constitute a relevant indictment? The minor begins in these terms: "Yet true it is and of verity, that you, the said William Edgar and John Keith, 2 |