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not punishable by the statute, in which no such offence is mentioned. In all probability no statute will ever be made, declaring that which is charged against the prisoner in this indictment to be punishable with death, or with any other punishment or penalty whatever. But, at all events, the prosecutor has totally failed in this indictment to describe the statutory offence. Indeed, the prosecutor's description of the crime supposed to have been committed defeats itself, by containing a plain and direct contradiction in its terms. He alleges that the prisoner administered an oath, binding the persons taking the same to commit treason. This allegation presupposes, that a person, taking an oath to commit high treason, is actually bound by such an oath, which is an evident absurdity. An oath may be binding where its obligation is to do a thing that is legal or innocent; but no obligation or binding engagement can ever result from an oath to commit high treason, or an oath to commit any other crime. Nobody can be bound, by the most tremendous oath, to violate every previous obligation and engagement he has come under. As the prosecutor describes the offence, therefore, no such offence could exist; and the statement of it is a contradiction in terms, in so far as it supposes the party taking the oath to be bound by his allegiance, without which he could not commit high treason; and supposes, at the same time, that he was not bound by his allegiance, but actually bound by the oath which he took. Such an absurdity as this, can never be sustained in any criminal charge, or indeed in any legal proceeding; and much less can it be sustained in a charge upon which the accused party is to be tried for his life. But, though the absurdity were less evident than it is, the objection to the terms of the charge is insurmountable, upon the plain and simple fact that the averment of the prosecutor does not charge the prisoner with the statutory offence. It would indeed have been very extraordinary, if the legislature, in describing an offence, of so high a nature as to be punishable with death, had fallen into the absurdity which has crept into this indictment. The statute does not assert, or acknowledge the possibility of administering or taking an oath, of strength enough to bind the person taking it to commit high treason, or to commit murder, or any other crime. On the contrary, it is clearly implied, in the very terms of the statute, that such oath is, to all intents and purposes whatsoever, destitute of binding force. The criminality contemplated in the sta tute, is that of violating, by the total perversion and misapplication of a solemnity, the obligations which bind men to each
other in society-a violation of the most dangerous nature, perpetrated by the most wicked means. To administer an oath, purporting or intending to bind the person taking the same to commit any treason or murder, is a wicked and danviolation of the most sacred engagements, though it gerous Cannot alter them. This is the statutory crime; but as no such crime is charged in the indictment, the objection suggested on the Bench is perfectly well founded.
MR. DRUMMOND.-It is now my duty to submit to your Lordships, some remarks upon the other side of the question; and, after the long discussion which has already taken place, upon almost the same indictment as that now under your view, and after the ample time which you have had for private consideration of the subject now before you, I do not feel myself called upon to enter so much at large into the case, as otherwise I might have done. Indeed, there were some arguments used upon the other side of the bar of which I shall omit all notice, as not appearing to me to have any intimate connection with the points at issue, or to be likely to influence the ultimate decision. But there are others which are of great importance; and to these I shall at once proceed.
The first and great point that appears to me for your Lordships' consideration, is, the construction and meaning of this oath; for, unless the oath has the meaning which we put upon it, it is unnecessary to say a single word upon any other part of this indictment. By what rule of construction then, are we to find out the meaning of the oath? Are we to take the literal meaning of the words, or to put a more liberal construction upon them? I am not afraid of any of the rules of construction that may be adopted on the other side of the bar; but I suppose it is unnecessary for me to say any thing as to the literal meaning of the words, as this will obviously bear but one interpretation; and this is not the mode my learned friends have had recourse to. Let us then take the plain meaning and sense of the oath, and put upon it that meaning which, in the common intercourse of life, is put upon words; and, I have no hesitation in saying, that this is the rule of construction by which, in my opinion, the oath should be tried. The counsel on the other side, have employed great ingenuity in attempting to construe the oath, and have taken a way, which no man of common sense, in the ordinary affairs of life, would have hit upon. They have endeavoured to construe out of the oath, a reservation of illegality, that is, of illegal measures, for the prosecution of the objects in view by those bound by the oath. They assert,
that when this oath was taken, this reservation was understood to be implied, that the objects in view, were meant to be ac complished by all legal methods, but not by any illegal methods; and they say, that your Lordships are called upon to give this construction and meaning to the oath. Upon the other hand, I have to submit that there is no reservation of il legality within the compass of this oath. The oath is gene ral, and has no reservations; it extends to, and includes all methods necessary for the accomplishment of the ends in view, whether by moral or physical strength.
In construing the meaning of the oath, in a question of relevancy, you will take into view, not the mere meaning of the words of the oath itself, but also all the circumstances under which it is libelled that the oath was administered and taken. It is libelled, that the oath was wickedly, maliciously, and traitorously administered; and imported an obligation to commit treason. If the oath may mean what the prosecutor says it does, as he libels that the act was done wickedly, maliciously, and traitorously, I have to submit that the charge is relevant, and that the prosecutor is not bound, in this stage of the process, to shew that this is of necessity the meaning of the oath. He is entitled to stand upon this ground, that, if the oath may mean what he says it does; and may bear the meaning with which, in the indictment, he says it was administered and taken, you are bound, libelled as it is, to give it the construction which the prosecutor says it bears, to the effect of sending the charge to a jury. It will ultimately remain for the jury to decide as to the guilty purpose.
But this is not the naked case before your Lordships. There are other circumstances which are not to be lost sight of in construing this oath. Your Lordships, in looking at the indictment, will see that the oath was administered at secret meetings; a material circumstance in considering the views and intentions with which it was administered. You will remember, that the society or conspiracy which was in view of the persons who administered and took this oath, was one of a very extensive nature, including a brotherhood of Britons of every description; and that the oath was actually administered to several hundred persons. These are remarkable features of the case, that the oath was so extensively administered, and that the object of the association was so unlimited. It is also set forth in the indictment, that this oath has been administered to persons who, conscious of their guilt in the premises, have absconded and fled from justice; and this is a circumstance relevant to pass to an assize, and, like all the other circumstances libelled, must be taken for granted as true by your Lordships in judging of the relevancy.
The taking of any oath of secrecy is, of itself, a presumption of guilt; and a secret purpose of any kind, is a presumption against the pannel. I know, that other oaths were alluded to by the opposite counsel; and, as an instance of innocence with regard to the objects of them, those of Freemasons were cited. But, I submit, that I am correct in stating the general rule, and that these form an exception. Freemasonry is an old piece of folly, at least; and, it is not only notorious that Freemasons have nothing to conceal, but it has been ascertained by experience, that mischievous consequences have not, in this country, followed from the oaths of secrecy of that institution. But, though there may be secret oaths of an innocent description, the presumption is against them, and particularly against such an oath of secrecy as the present, under the awful sanction of death; for it seems to have been a standing rule of the conspiracy to murder all informers.
The attempts, however, to shew that the oath might be quite innocent, appeared at length to be abandoned, and a distinct admission was made, that the administering or taking of this oath is a "misdemeanor ;" by which, I suppose, was meant (for the word has no technical meaning here,) something criminal at common law, though not in the highest degree. Now, if it be criminal, in what can the criminality consist but in the treasonable purpose and preparation? There is plainly no other wicked or unlawful purpose in view.
The oaths of allegiance, of supremacy, and others, were alluded to by Mr. Cranstoun, who ingeniously argued, that, according to our principle of construction, the administration of these oaths might be held to imply an obligation to commit treason. But the question here is not what extraordinary constructions the ingenuity of learned men may put upon what may be placed before them. The question is, What would a man of common sense think upon the subject, did it come before him in any ordinary transaction of life? Such fanciful illustrations are little to the purpose. But I happen to have here a specimen of another oath, the striking similarity of which to the present cannot fail to attract particular attention. It was the foundation of all that conspiracy in Ireland, which afterwards ended in open rebellion against the government; and your Lordships will see, how the terms of the oath cited in the indictment tally with the terms of the oath, or test, as it was called, which I am now to read: "In "the awful presence of God, I, A. B. do voluntarily declare, "that I will persevere in endeavouring to form a brotherhood "of affection among Irishmen of every religious persuasion; " and that I will also persevere in my endeavour to obtain an
“equal, full, and adequate representation of all the people of "Ireland. I do further declare, that neither hopes, fears, re"wards, or punishments, shall ever induce me, directly or in"directly, to inform on or give evidence against, any member 66 members of this or similar societies, for any act or expres❝sion of theirs done or made, collectively or individually, in "or out of this society in pursuance of the spirit of this obli"gation." I hear one of the opposite counsel remark, that this oath contains no obligation to commit treason; but, I do not know with what view the remark is made, unless it be to mark the contrast between the oath which introduced the Irish rebellion and all its terrible consequences, with that more atrocious oath now under consideration.
The terms of the oath in the indictment are now so well known to your Lordships, that I need not point out the particular differences between the two oaths.
What the prosecutor says is, that this oath means to bind the person taking the same to commit treason; and it is objected, that he has not told your Lordships, on the face of the indictment, what species of treason the taker of the oath is bound to commit. Here, I must request your Lordships' attention to what appeared to me to be a palpable fallacy in the opposite argument. The case was all along pleaded by the learned gentleman, as if the prosecutor had been charging the pannel with the crime of treason itself. Now, there is no charge of treason; but a charge of administering an unlawful oath an oath binding to commit treason, which object of the oath must indeed be libelled, otherwise there is no relevant charge But the indictment is not to be construed as if it had been libelled that treason was actually committed; nor is such a specification of treason to be required as if it had been charged as the offence of which the pannel is accused, and for which he is brought to trial, and not merely as existing in intention. The essence of the relevancy is what the pannel did, not what he had in view; of which, no more can be told than what the oath itself reveals. Any thing else is an inference in law, which can add nothing to the relevancy. Now, although the prosecutor has not drawn an inference in law from the facts, he has told your Lordships, not only the acts done, but all that he knows of the acts which the parties bound themselves to commit. He tells what the facts are, which, it is the inference in law, if done, would have been treason. But, in judging of the relevancy, you are not merely to judge whether the prosecutor is right in his inference from the facts. Your Lordships will go to the oath, and draw the conclusion in own minds.