either by contracting debt, or altering the order of succession, was not a resolutive clause in the case of selling, although the general words in the clause would have been good, if its meaning had not been restrained by the words which followed, either by contracting debt, &c. which necessarily had the effect to limit the operation of the clause, and to make it inapplicable to selling. In like manner, there are words in this indictment which would have been sufficient, if they had not been restrained by the words, "binding the persons taking "the same to commit treason;" and, in the "at least" clause, there are general words which might have been good, if they had not been restrained by the previous words in the indictment, and by the words, " as said is," which necessarily restrain the meaning of the other words, and confine it to the meaning expressed in the previous branches of the minor proposi tion I here conclude my remarks upon this case. LORD JUSTICE-CLERK. After having heard very able argument, for seven hours and a half, I wish to know what course of procedure appears to your Lordships proper for us to follow. LORD HERMAND.-When any difficulty occurs in this Court, it has always been the practice to order Informations. I think there is the strongest reason to take all the assistance we can in this case. I give no opinion at present upon it. I wish, however, more attention paid to what was stated on the other side of the bar. His Majesty's counsel might have said more. Some of the counsel find themselves in a new situation in this case. I do find myself so. When I was young at the bar, I read many books of English law; but, since I sat upon the Bench, I never had occasion to resort to them. If I give an opinion against the pannel in this case, it must be upon strong grounds I do so. LORD GILLIES.-I concur in the course of proceeding suggested by Lord Hermand. One objection appears to me to be fatal to the indictment; that which was noticed by your Lordship. In the part of the indictment, where the act charged should be set forth in the most particular manner; where, if there was any mistake in the preceding part, it should have been corrected; where every thing should be full and accurate, the oath is not libelled as purporting or intending to bind, but the oath is said to be one binding to the commission of treason. I have heard no answer made to this objection. I must take the words of the act, from which there is here a material deviation. The word " binding," may either mean, binding in law and morality to commit treason-which could never be meant, being an absurdity; or that the oath binds in terminis to the commission of treason. But it appears to me, that the words in the oath do not expressly bind to commit treason. In these circumstances, I should wish the Court to give its opinion on this objection before ordering informations. Whatever your opinion may be on the other points, this objection probably appears to your Lordships as it does to me, to be fatal to the indictment. I give no opinion at present on the other points. LORD PITMILLY.-I am much in the situation of Lord Gillies. I should wish informations, or time to consider the argument of to-day, before giving my opinion on it. But, it appears to me clear, that the indictment is liable to the objection which was stated by Lord Gillies, and also to that which was argued by Mr. Cranstoun, viz. that it charges that the oath was traitorously administered. The use of the term binding," instead of " purporting or intending to "bind," appears to me to form an objection fatal to the indictment. That clause in the indictment does not appear to be surplusage, though I thought so at first. It is not necessary, in the minor proposition of an indictment, to repeat the major; it is not necessary, when murder is charged, and the facts are stated by which the murder is made out, to add "whereby the murder was committed." That would be surplusage. This, however, is not a repetition of the major proposition-it is a substitution of words which do not amount to the crime stated in the major proposition, and it is therefore inaccurate. It does therefore appear to me that the indictment is liable to this objection, and it is not upon point that I wish for information, but upon the other argu ments. one. that LORD RESTON.-I think the objection spoken to is a good LORD ADVOCATE.-I will undoubtedly serve a new indictment; and the informations may be ordered upon the new indictment. LORD JUSTICE-CLERK.-I have not heard the objection. obviated; and it appears to me to be fatal to the indictment. I go at present upon the distinction which was noticed; for here the question is not fairly raised as to the relevancy on the general grounds. The words employed in the minor propo sition go to a limitation not warranted by the act of parliament. I am not called to say what is the effect of an oath that binds a person to commit treason. I am called to give my opinion on an oath which is averred to purport or intend to bind a person to commit treason. You have not before you an act of parliament that makes it criminal to bind to commit treason, but you have a statute which makes it criminal to administer an oath purporting or intending to bind to commit treason; and, therefore, it is impossible for the public prosecutor to say, here was an oath administered on four different occasions, binding to commit treason. That is not the offence which it was the purpose of this act to provide against. I have heard no answer to this objection, and therefore it is difficult to order informations on this indictment. If the public prosecutor mean to charge only the capital felony mentioned in this act of parliament, he must employ language applicable to that capital felony alone, and the word "traitorously" ought not to be used in this indictment. It ought not to be in it, in order to raise the question which we are called upon to try. I own, the part of the case upon which I should wish for information, is that as to the positive averment as to the rule of the law of England. If the counsel for the prisoner are right, in stating what would be the rule of construction in England, and in affirming, that, on this occasion, the English rules and forms must be adopted, they must shew this in a manner to enable us decidedly to form our opinions on the subject. We do wish for every aid and assistance, if we are to be told that such a mode of proceeding would be adopted in the Court of King's Bench, and that it is our duty to follow the same mode of proceeding on this trial. When we are called upon to give our opinions upon the oath, we must proceed upon the general principles of construction, as to the import of the terms of it. I fairly confess, my difficulty is on the point which I have last mentioned. LORD GILLIES.-I wish the informations to be full, upon all the branches of the case. The proceedings of the Court were entered on the record in the following terms: "His Majesty's Advocate represented, that, since the "service of the indictment above mentioned, he had rais "ed and executed a new indictment against the pannel; "the diet whereof alse stands adjourned to this day. He "therefore moved their Lordships to desert the diet of the "first indictment, reserving to him to insist upon the second "indictment as accords." "The Lord Justice-Clerk, and Lords Commissioners of "Justiciary, in respect of what is above represented, desert "the diet of the first indictment against the said Andrew M'Kinley, reserving to his Majesty's Advocate to insist upon the second indictment, as accords. 66 66 (Signed) D. BOYLE, I.P.D." And the second indictment being called, and "the pannel "being interrogated thereupon, he answered Not Guilty." After parties procurators had been heard at very great length, upon the relevancy of the indictment, His Majesty's Advocate moved the Court to desert the diet of the present indictment pro loco et tempore, as he meant to serve the pannel with a new indictment. "The Lord Justice-Clerk, and Lords Commissioners of "Justiciary, in respect of what is above represented, desert "the diet against the pannel pro loco et tempore. (Signed) D. BOYLE, I.P.D." "Thereafter a petition was presented to the said Lords, in name of His Majesty's Advocate, craving a warrant for recommitting the said Andrew McKinley to the Castle of Edinburgh, till liberated in due course of law, which was granted accordingly. |