to find this indictment relevant, he requires you to make the very same answer which the English judges did in the reign of Richard II. and which Sir Matthew Hale so strongly reprobates—an answer, on account of which one of those unhappy judges was dragged to the gibbet, and all of them held up to the execration of posterity.

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may illustrate this proposition in another way more familiar to your Lordships, by referring to our own, instead of the English law. Mr. Hume, Vol. III. p. 310. expresses himself in the following words:-" I have said in the second place that a libel is not good, unless it give such an ac"count of the criminal deed as may distinguish this particu"lar charge from all other instances of the same sort of crime, " and thus bring the pannel to the bar, sufficiently informed of "that whereof he is accused; otherwise the would purpose "not be fulfilled, which the law entertains, in ordering the pannel to be served with a copy of his libel, and allowing him "so many days to make preparation for his defence. In con"firmation of this rule, M'Kenzie has rightly appealed to that "statute respecting the crime of forestalling, which allows an "offender in this sort to be indicted, generally, as known and reputed to be a common forestaller, without any more special "detail of his transgression; thus plainly implying, that "such a course of accusation is contrary to the tenor of our common law, and is justifiable only under the authority of a "positive enactment. It is certain, accordingly, with respect "to any article of dittay, which is stated quite at large, with"out any reasonable specification of the time, place, or man"ner of the thing which is alleged to have been done, that "the pannel cannot be put on his defence against it."

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Now I should like to know what species of treason-in the words of Mr. Hume, "what sort of the crime," the Lord Advocate had in view, under the description of effecting, by physical force, the subversion of the established government.

To obtain annual parliaments and universal suffrage by violent and unlawful means, may be overt acts of compassing the King's death, or of levying war, or of conspiring to levy war, to obtain an alteration of the law. If the public prosecutor may have in view three different treasons, distinct from each other, how is it possible, according to Mr. Hume, that this can be a relevant indictment, when it does not specify which of them he had in view? This argument, you will observe, is distinct from the other. Formerly I argued, that to libel an overt act of treason, is not to libel treason; now I contend, in addition to that plea, that to libel treason is insufficient, unless the sort or species of the treason

is also laid. And whatever holds with regard to a libel for treason, necessarily holds with regard to a libel for administering an oath binding to commit treason.

But there is one consideration more, to shew you the extreme danger of admitting charges of constructive treason; and it is this, that the facts here represented as overt acts of treason, do not in reality amount to treason, or afford any evidence of the existence of treason. In truth, the law, the constitution, and the government, may be subverted by violent means, and yet no treason be committed. It is no matter that the case is not very probable; it is quite sufficient for my present purpose, that it is merely possible. Suppose the case, that an individual robs the bank, and bribes Parliament to make the government despotic, where is the lawyer who will affirm this to be treason under the 25th Edward III. ? Suppose that an individual compels a judge, by violence, to grant criminal warrants for arresting illegally certain Members of Parliament, in consequence of which they are prevented from voting against universal suffrage and annual parliaments, This is not levying war to put constraint upon Parliament, under the 36th of the King; for the act of an unarmed individual, as we shall suppose him, cannot be the levying of war. Yet here the constitution is overturned by violent and unlawful means, without the commission of treason. These are examples to show the danger of departing from the salutary principle of the law of England, that where treason is charged, it shall be accurately specified. If you depart from that principle, and find the present indictment relevant, you overturn the whole law of treason you let in all the constructive treason which existed before the 25th of Edward III. and the security which the subjects of this kingdom derived from that excellent statute will be destroyed.

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One circumstance I had nearly forgot to mention. It is only another instance of the extreme inaccuracy with which this indictment is framed. It was pointed out the last time we were before your Lordships; but the public prosecutor has not corrected the error. The terms of the oath, as he has stated it, in the third clause, are, and that I will support the same to the utmost of my power, either by moral or physi"cal strength, as the case may require;" and yet, when he comes to mention the import of the oath, in the subsequent part of the indictment, he says the obligation was to use physical force. Now, you see he does not do this carelessly or unintentionally; for he repeats it after his attention had been expressly called to it by the prisoner and by your Lordships;

and his doing so is just saying he thinks himself entitled to substitute one word for another, although they are of an import materially different. If he is to be indulged with that liberty, it is in vain to talk of construction at all, for he make any oath signify what he pleases. Strength and force are undoubtedly two different things, as was well illustrated by Mr. Clerk on a former occasion.

may

The grounds then, I go upon, are these. First, I maintain that this is an accusation of treason, which cannot be tried in the present form. Secondly, That the obligation contained in this oath, with the exception of a misdemeanor, does not infer any thing criminal; and that even if it did, it does not necessarily infer any thing treasonable. Thirdly, That the meaning which the prosecutor extracts from the oath, is not the meaning that, by any fair construction, it can bear. And lastly, Supposing it did bear his meaning, that the acts, which says amount to treason, do not amount to it. The indictment is altogether erroneous; the obligation which it affirms the oath imposed, is not affirmed to be a specific treason properly defined; and, in fact, it may be no treason at all.

he

There is another objection to this indictment of a nature a little more subtile, and which rests on a principle of the law of England applicable to this statute. If you give leave to one of my brethren to address you on the subject, that objection may be stated to you with more effect. On a former day, your Lordships stated that it was your rule to allow several counsel for the pannel to speak in succession at the commencement of the argument on the relevancy; and it is because I am not so well qualified to do justice to this point, that I would rather devolve it on another, who is more conversant in English law. The objection rests on two or three propositions. It is well established in common law, that felony merges treason; and when, from the evidence in a trial on a charge of felony, treason appears to have been committed, the trial cannot proceed for the felony. Now here, the conclusion of the prosecutor is, that the oath was traitorously administered; and the overt act refers to an oath which would in itself, if administered or taken, amount, according to the prosecutor, to the crime of high treason. It is no answer to say, that the statute here enacts that an oath binding to commit treason should be held to be felony; for this reason, that it is another principle of the law, that where the legislature declares a certain act to be felony, it shall be held not to have been treason before the statute. There might be many oaths binding to commit treason, which oaths might be taken without the taker actually committing treason by so swearing. An oath to levy

war for destroying stocking-frames, may not be treason, whereas other oaths binding to commit a treason, in the very act of administration or of taking, form treason of themselves. The legislature might have in view only the species of oaths, which binding to commit treason, do not, in the administrating of them, infer the commission of treason. Another rule is, that where there are two statutes relative to any matter, and the one does not repeal the other, they must be interpreted so that the one may be consistent with the other. Statutes,

therefore, as to treason, which have passed since the statute of Edward III. must be construed, if possible, so as to be consistent with the latter. This limits, therefore, the statute of the 52d of the King, to those oaths only which are administered without the commission of treason at the time of administration; and, in common sense, it could not otherwise be interpreted without endangering the whole fabric of the constitution. What would be the consequence were the case otherwise? A person administering an oath, the very administration of which is treasonable, might be protected from a prosecution for treason, by an indictment being served upon him under the statute. It is plain, therefore, that this statute, in as far as treason is concerned, can only apply to oaths binding to that species of treason in which the taking of the oath is not of itself treason. These principles will be illustrated more at length to you by Mr. Grant, and supported by authorities.

It is upon all these grounds taken together, we submit, that this indictment is as objectionable as the former, and that the prisoner, therefore, should be dismissed from the bar.

LORD JUSTICE CLERK.-Before Mr. Clerk is precluded from making any observations on the subject, I think it right to direct his attention to a circumstance which has occurred to the Court, as deserving the consideration of both parties. In reference to all the four particular charges, as to the administration of this alleged unlawful oath, this indictment concludes in these words :-"The said oath, or engagement, or "obligation, to the said purport, binding the persons taking "the same to commit treason, as said is." These are not the words used in the conclusion of that part of the indictment which follows the recital of the oath: "which oath, or engagement, or obligation to the foregoing purport, did bind, or did

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purport or intend to bind, the persons taking the same to "commit treason, by effecting, by physical force, the subver❝sion of the established government, laws, and constitution of "this kingdom, and especially by obtaining annual parlia"ments and universal suffrage, by unlawful and violent means."

In the four particular instances of the administration of the oath specified in the indictment, neither " purporting," nor "intending," are mentioned, which are the words of the sta

tute.

I think it right to bring this under the observation of the Bar. The objection was already in your Lordships' view.

Mr. GRANT. If in a case of this extreme anxiety, my attention could be directed to any thing personal to myself, I should certainly feel under the greatest embarrassment, in addressing your Lordships, after the speech which you have just heard. I cannot, however, on the present occasion, feel the least concern for any thing that belongs to myself. Not only is this case one of great anxiety, as it involves the lives of the unfortunate men who are to be tried for the crimes. which are charged in this indictment; but I regard it as one of the greatest importance in point of law. It is, so far as I know, the first case in which the Court of Justiciary in Scotland has been called upon to decide on a question of treason, according to the principles of the law of England regarding treason, which were imported (if I may use the expression) into this country immediately after the act of union between England and Scotland.

I am bound to believe that your Lordships are conversant with the English authorities upon this subject, because you are bound to administer the law according to these authorities; and, therefore, when I refer to these authorities, and when I address to your Lordships the same sort of argument which I should address to the courts elsewhere, I am aware, that not only no apology is necessary for doing so, but that it is my bounden duty so to do, because these are authorities in the law of Scotland. When I say this, I do not mean to assert so unreasonable a proposition as that it can be expected from your Lordships that you should be as intimately acquainted with the phraseology of this part of the law, and with the cases by which it is governed, as you are with the phraseology and established practice of the law of Scotland, as it applies to the cases which generally come before you.

Therefore, when I request your attention to the argument which it is my duty to state to you, I am aware that I demand of your Lordships an attention to a subject with which you cannot be so thoroughly familiar as you are with any other branch of the law which you administer; and I am also but too sensible, that I am not capable of either explaining or supporting my argument in the manner which the deep importance of the case demands.