Star. — London, England, 1817-04-14 00:00:00

TRIdL FOR TREZSON. 7'T:3:l COURT OF JUSTICIARY, EDINBURGH. IV:alnesday, the Court proceeded to the trial bf iiiiliam Edgar and John Keith, both prisoners in tilt Cistle of Edinburgh, indicted upon an Act of the ;ti of his present Majesty, for administering on two diTerent occasions, within the City of Glasgn*, the following unlawful Oath to Peter Gibson, and seven others, all present prisoners in the tolbooth of Glas gow ; and also to James tkl'Ewan, carding master at Humphries' Mill, Gorbals of Glasgow, and M'Dowal r o e, or Peat, weaver in Piccattliy-street, Andetston, Glasgow;titan who, conscious of their guilt in the premises, absconded and fled from justice, or were aiding and assisting in administering of said unlaw ful Oath, a In awful pretence of Goo, t, A. B. do voluntarily swear, that will retatvere in my endeavouring to form a brotherhood of sffecrosi among Britons of every description, who are wandered w orthy of confidttice; and 'bat I will persevere in my endeavours to ob•ain foe all the people In Great Britain and Ireland, not dia. co gged by crimes or insani , y, the elective francliist at the age .1 twenty- a ny, with free mid equal representation sad annual parliaments; and that I will sup,son the same to the utmost of 24 Fo ra, either by moral or physical strength, as the case may re vue: and I do further swear, that neither hope;, tears, re wet% or pumshmeists, shall induce me to inform on, or give cs ikece agair.st any member er nuanbets, collectively or indivi d,A, for my act or eSprission done or made in or out of this or dada socivies, under the punishment of death, to be itilicted wn i by any metubtr or members of such sucieties—su help rue Gov, and keep me stalfast." l%alich oath or obligation thus purport or in tend to bind the persons taking the same to commit treason, by effecting by physical force the subversion of the established Government, Laws, and Constitu. Con of this kingdom. The LORD Ativocaris stated, that, from certain circumstances, he found it proper to desert the diet against John Keith, fire loco et tem/tore, and lie was committed upon a new warrant. The indictment hay irg been read over, Edgar pleaded Nut Goilty. Mr. CRANSTOUN spoke as follows :—I am of Counsel in this case tor the prisoner. Tne object of Cie indictment is to charge the prisoner with a capital crime ; with the crime of administering an oath pur porting or intending to bind the party taking it to comma the crime of treason. This is not a point of ditto, which makes part of the ancient or common law of Scotland—it is not a crime, the nature of which and the manner in which it is to be charged are settled by precedents or authorities familiar t?; your Lordships,—it is a charge introduced by a spe cial statute, and recently introduced; and, as far as I have heard, no trials have taken place hitherto upon this statute ill Scotland. This case also is of a na. tare most peculiarly delicate. The life of the priso- ner at the bar depends, or it may depend, on the construction which is put on the words which he uttered. To administer an oath without judicial au thorny perhaps is not a very common offence. In a moral point of view this may sometimes be improper, as tending to lesseo the religion of an oath, as applied to frivolous or improper subkcts, or on a frivolous and impri): - ..,r occasion. Ac the same time, it is . not an offence prohibited by any law, or held out as such by any uniform, common, or daily practice. It is a practice in many societies and associ4tions to adminis ter an oath, when it is clear that there is not the least intention on tie p trt,eithei4if the person admit:Meting, or of the person who takes the oath, on the one pall to impose,nr on the other to undertake any unlawful thing. It was the object of the statute here founded on to make this practice iu particular circwnstances the ground of a capital prosecution ; and it is obvioasly was where the guilt or innocence of the party may, depend upon the . interpretation which you put upon his words. You are all well acquainted with the statute of Mary, which swept Tway that mass of coostractive ueasolas.by which our statute-book was previously polluted ; .119 act which was held by the nation at the finis et, one of the greatest blessings ever conferred bran it, and which is still regarded by their posterity with admiration and gratitude. = Tike present statute no doubt was passed at a time when ttiMei of every sort were common; inftliat situation of things a speedy and efficacious remedy was neces sary; and no doubt this statute, passed as it Was with the best intentions, may have been found to answer its object. But considered, asit now must be, as a standing rule, as a portion of our general criminal law, and to be applied to other actsthan those which gave it birth, we may be permitted to doubt whether it was prepared with all the caution requisite. and whether it is not somewhat lax in the principles ,on which it proceeds. Being part of the criminal law of Scotland, I am entitled to say; that an indictment founded on it shall be accommodated to our form of criminal proceedings; ; and taking this subject into consideration, I think I shall be able to satisfy your Lordships that the libel as here laid, and on which_ client is here put to trial, is Ant a libel reletrant, according to the form of oar criminal law. This is a point of the utmost importance, and to which the uttendnn of your Lordships is most earnestly requested. In this libel the major proposition sets fcirth, that " Albeit, by an Act pawed in the 53d year of his present Ma irs entitled , • An Act to render more effectual an Au l Tailed f ps , the 37d, year of his present Majesty, for preveusiog the adarfoiatertas or eking unlawful oaths,' is is, lake slim. enacted, 'That every wean who ehall, to any atanner or Corm whatsoever, administer, er Muse to be administered, or be aids il'g, or Wahl at Ilse Ludnistering of soy oath or comment, InrPoitlag or Intending to bind the person taking tke same to canunit any unmoor *rd.:, or any felony mudahable by law ‘‘ j : ll , 4 catit, shall, ontionvictiou thereof by due course of law, be guilty of felony. and auger death as a filott, without .ta t h t of clergy. • NW, to regard to the major proposition of this indictment, I have no objection to make. It is per. fectly correct in reciting the cla use of the Act creating the crime now to be tried ; and, therefore, in consi dering this proposition, the only thing to be attended to is, what is the nature of the crime here stated to be punishable? It is the.administcring of an unlaw ful Oath, purporting or iatending to bind to certain riirnes. Now, coo regarding this clause, your Lord. 'ii ; ps will be satisfied, and it. requires no illustration to prove- - -Ist. That it is no. sufficient to constitute the crime that the person who administers the oath aiminal intentions at the time. It is not•suffi cient that at the time he is engaged in a train of ins- Proper or criminal conduct. It is not enough that tke person who takes the oath intends to commit, or, is in the course of committing nyiminal practices. All this is insufficient. It is necessary, it is the gist and "'sauce of the crime. that .the oath shall purport to 41011 to the commission of crime. Hawing said. ;Lo a m ac h aa the at p ro p ee kie t , we sew opens ' to consider whether the minor sets forth facts snfL• cient to infer that crime. The minor begins in these terms: " Yet tens lt feted of verity. that you the said William Edgar and John Keith are both and each, or one or other of you, guilty of the said crimes, or of one or more of them, actors or Atm, or art and part : le so far as, you the said William Edgar and blin Keith having, at Clasp* and in the vicinity thereof, in the course of the months of November and December, 1816, and of January and February, 1617, wickedly, maliciously, and traitor. ously, conspired and agreed with other evil.disposed persons to break and disturb the public peace—to change, subvert. and over throw, the Goveruntent —an I to eadte, ntuve, and raise insurree • don and rebellion—and especially, to hold and attend secret meet ings. for the purpose of obtaining Annual Parliaments and Uni versal Suffrage by unlawful and violent means, did, then and there, both and each, or one or wher of you, wickedly, mali. ciously, and traitorously, administer, or cause to be administered, or did aid or assist at the administering, to a great number of rr sons, an oath or enpganent, or an obligation i:i the nature of an oath, in the following terms, or to the fellowiug purport." Here the prisoner at the bar is said to have com mitted certain heinous crimes. These crimes, it will be obseived, are not laid as a charge against the pri soner; and indeed it is impossible they should, for the prisoner can be charged With nothing in the minor, hitt what makes a part of the crime in the major.— The charge here is one of adminiitering an unlawful oath; and whatever other pritctices are set forth in the minor, they form no part of the present charge. And I trust,. that however atrocious the crimes here affirmed to have been committed by the prisoner may be, I shall she*, that as they are in themselves totally irrelevant to infer the crime with which the prisoner is charged, so at the same time it is totally incompetent, according to the .best established prin ciples of our criminal law that they should be ad 'mined to Proof." What ehave to say on that point I 'err for future einsideration, pruceedinz, in the mean time, ,to consider the oath which was admini stered, said. as it is, to purport tan obligation on the taker to commit treason. The prosecutor, after reciting the oath, says, that it purports a design to obtain the subversion of the Constitution by physical force; but it is not enough that the prosecutor says this. It, on considering the oath, your Lordships are of opinion that the oath so set forth has not that effect, then his mere averment that it is an oath of a certain purport, will not make it so, and he is not entitled to have the libel sent to a jury to say whether it has that purport or not ? for that would be taking away the _relevancy of the libel from the Court. It istrery tru e that besides the word 4 1 purport," there is another word used here, " in tending." What is the meaning of the word intend ing I shall afterwards consider, and ,it is of impor tance to this case; but, in the first place. let us see what is the effect of the word purport : the purport is what the oath Means, as gathered from the words there set forth. Let us look at the words of this oath, and see if it purports what the prosecutor says it does. No man surely will say that it has the effects ascri bed to it. In the first place—" lam to persevere in .my endeavouring to form a brotherhood of affection amongst Britons of every description who are consi dered worthy of confidence." Nobody will pretend tosay that there is a crime here. All of us are bro thers; and it is becoming that we should dwell toge ther as such. But the oath then goes on to say, 16 That 1 will persevere in my endeavours to obtain' fry all the people of Great Britain and Ireland, not os q ualified by ci Imes of insanity. theelectitte chile, at the age of twenty-one, with:lree and equal -representation, and annual parliaments." I believe there are few persons qualified, either from their na tural parts vr information, to judge on subjects of 1 . 1 this kind, who are of opinion snour that annual parliaments or universal auffrsge would be any advantage, or that they would conduce to any thing else than the eitablishment either of a despotism on the one hand, or anarchy on the other. But while this is stated, it is well known to your Lordships, that it is a question on which every sub ject of this kingdom may state the opinions which he holds, .and having adopted them, he may have re course to all lawful means whatever, to have such change produced in the Getertuneat as he &maids may think proper. Indeed, I need not tell your Lordships that the British Parliament hat at different times limited the duration of Parliament' and' the Mode of Suffrage; and if any individual beef& be lieves that anneal PailiaMents and universal Suffrage would be ter his benefit, there is nothing to prevent him, and it is no crime whatever, to use his endea vours to obtain this thing, and accordingly the people every day give in, and Parliament receives and. takes into consideration Petitions for Annual Parliaments. Now, perceive in this no,crime whatever. It is not said to be endeaeouredby this Oath to use Unlawful means for these purposes.-- It is stated no doubt narrative, that the oaths were administered by persons who were engaged in a trea sonable conspiracy; but it is not said that the persons to whom the oath was administered were so engaged/. therefore, that being the case, the obligation that the person undertakes is to use hi: endeavour: to obtain annual Parliaments, Dm and that is an obligation perfectly 14014 If your Lordship! consider any thing beyond the terms of the oath, then the very ad ministering of the oath of allegiance and abjuration might be converted into an oath to commit treason; for in that oath the party swears that he will do his utmost endeavours to disclose all treasons.-ke. and to maintain the succession to the Crown; but this dues not mean that he is to do tudeoftd endeavours to main tain that succession—it only purports, that he is to use his natural and lawful endeavours to obtain that object. —The oath then goes on to say, "That I will sup. port the same to the utmost ~1* my power, either by moral or physical strength, as the case may require." In supporting all lawful endeavours, by moral or physical force, to obtain these objects, the party means merely to the utmost of his power. that ha still use all his strength, to procure these lawful objects. You cannot support what is not in existence, therefore it would mean that be . was to support annual Yuba ' melds, /cc. on these things being obtained, and that he was to support them only after they were obtained. If they are once obtained, .that it becomes lawful and is the duty of every good man to support them. With regard to the terms moral and physical strength, the individuals in question, and all those assisting, might also support their 'endsavoun either morally by soliciting friends, atc. or by their physical strengh, foe any individual maybe dispatched as it messenger, sad may uMaust his whole. strength in going about to solicit Members of Pariiasnent fen their support ; or at the meetings where they are assinibled, be may employ his whole physical bans to keep-off the rats: We, or be hay use Lis pLytisal Fork in. twenty ,iir. ferent ways, which by the act are not unlawful. The ceith concludes w:11 serrating that neither hopes not fears, ccc. will induce him to disclose •it I shall admit at once that this cotrcealment is improper. But this is a tnisdemeaaour with which I have noconcern whatever, for this would not infer the particular crime here chari..el Read this oath, therefore, from be ginning to end, and say does it purport, by any fair construction, to impose a ti easonable obligation ? Read the words from beginning to end a hundred times over, and still it will be impossible to say that it hat such a purport. It cannot be explained to nano any thing else, than the imposition of a lawful obligation, taking the oath by Itself, and not in reference to what may have been the intentions of the p 'flies.— Having considered the words in the oath, I now ought to add, that it the oath does not purp trt trea son, there is an end of the present indictment I but after repeating it, the Public Prosecutor immediately adds his assertion, that it did purport treason. But I say that averment is utterly unfounded, for the oath does nut purport treason. It is for you to judge between us, whether it dates or does not ? And it you are of opinion that it d. es not, then it will not do for the Prosecutor to aver that it does. The in dictment then cannot go to a Jury. The civilians have a gloss. of which" cannot recollect the name, by which they extract from a text a meaning directly the reverse of the true meaning. The present is exactly a gloss of this nature. In the eels/median g;veti too. you see the word fore: substitqed for strength in the oath. This may seem extremely immaterial, bat it is ant sot it is done in order to insinuate a meaning totally different from what the oath bears. Force means an armed force assembled, but there is no such thing as an armed strength; but it is farther said, that the oath was to bind to the subversion of the Government, &c. but there is nothing from beginning to end of the oath about effecting any thing. It was only to persevere in the endeavours made to.obtain certain objects. These objects were Annual Paella ' meets and Universal Stiffrage; but these, if obtained lawfoliy, would not subvert the Government. The gloss, therefore, is extracting a meaning irons the words exactly the reverse of what they truly bear.— The charge is thus utterly irrelevant. But I shall go farther, and request you to observe what may not strike you at first, but what 'I am per suaded, on a lullsonsideration of the law, will im mediately occur to your Lorships, that evert on the supposition that this oath did purport what the public prosecutor says it does„ still it would not purport an obligation to commit treason. For I say that persons . bound to effect by physical force a subversion of the. established Government, are not bound is commit treason. I 41.11 put this case, a case quite decisive of the merits of this question. I shall put the case that the House of Louis. e frith of course they never will do, pass a Bill for abolishing the House of Com mons, which of course would be a subversion of the Constitution. I shall suppose, that in the House of Commons it depends upon the vote of the Speaker, whether the Bill pass or not. That twenti or thirty adventure's not aniseed *oda gmsrrino, :u specie kill, bat with sticks and staves. go and compel rain to give his vote in favour of the Bill, 'I say the C.in,ti tutien of this couutr y • would .be subverted by fotee, Illikrtet it would be Impassible; limier a•ty of the Acts of Parliament existitg to make this treason. It wonlifbe no comprsaing or imigiiiiiig the death, of the King—no levying of war, nn conspiracy to levy war, and yet here the Cons ;nation would be subverted by force. Though therefore this oath did import what the public prosecutor says it does, but which most certainly it does not. sell it would not be an oath necessarily interring treason. I have now considered the oath o as purporting" to bind. The word purpOrting, as I have endeavoured to ex plain, is what appeats from the lords of the oath. It is the meaning of the oath as it may be taken from the words. But then the public prosecutor says that this oath pus ported, or intended ; and the question comes to be, Does' the use of the word in tended make any difference ? I apprehend it does not -for the intention of a writing or speech is the same 'as its purport; you will observe the Act of Parlia ment does not say, that if the person adminiitering *the oath intends the crime, that crime shall be inferred. That is not the meaning of the statute; the words are, that there shall be an oath or engagement o in. Mainz" to bind, Ike. It is the intention of the oath. net set the person, which is the crime; and, therefore, though it was perfectly clear that the prisoner admi nistered the oath, and that it was his intention at the time to bind the party taking it to commit treason, yet that is not enough, unless the oath bind to that .effeet. Now the oath does not, from any construction that can possibly arise out of the words, or from any interpretation that can fairly be put upon them, mean any thing but what is perfectly innocent; but then perhaps we shall be told that the public prosecutor is to prove, b e y facts and circumstances, that the intend ment cf the oath is different from its purport; and .that he has some such idea is likely, from the circum stance that be has drawn his narrative in the minor in the way he has done. I have various objecrimis and considerations on this, to which I "must call your Lordships' attention. In the first place, I Would say that suppoiing the prisoner had committed ill the things laid to his charge there, they would not infer that he intended to administer an unlawful oath. They du not create the smallest presumption to that effect. because a man may be engaged in treason itsel', ard yet may not have the smallest intention of imposing an oath upon another binding him to clothe same.—; The very reason why he' was engaged in such an un• dertaking may be the retina why l did not commu nicate it to others ; and I have'already observed, that it is not said, from beginning to end. that the pries taking the oath were participant intim ' NO secret intent, therefore, on the part of these indivi duals, could ever by any possibilitybe used to inter-, pret what the oath either purports or intends. But if these facts so set forth are irrelevant to infer the crime, I pray ycnir Lordships to attend to this c.r-, cutnstance, that then they are utterly incompetent to be proved. For'whatis the fact ? It is neither more nor less than this, that the prisoner had committed treason. And the public prosecutor is to prove him. uilty of treason, in order to show that he adminis tered an unlawful oath ! Now I say, in point of law, that it is utterly incompetent to. prove an act of twe sonagaiust, the prisoner, in order to infer. a crime et a totally different description. .Bat Awe are other Lemurs *by the facts set a forth in the natretive should ... 'rot allov. - el to be proved. the prtsoner is eltergeal with a treasonable conspiracy, tont it is no. eit forth who the persons . were • who wet- reward sTith him, it is net even set forth qe w..t engaked with persons to the Frasecia r He is accused of treason, while a is Neil kttown that no man can be pot upon his tri i 1 f tielson till a bill is found against him by a Grand Ju:y. In the next place. see / osing a bill to be sound . i g o him when hrouoht to trial, a thousand .lifferent hearts must ha ohsetved, whicO ate not eezessary in other:. For example, the prisoner is entitled to challenge a certain nueO.er of hislury uerempiorilv withoutcatior shewn. There is a variety of other 'privilege's which it is ennecessary to recite before a person Clo be tried for the crime of treason : t one of these has the Mi. goner here: and are you to try this individual for the crime of mason according to the Scotch rules, while it is well known that it cannot be triad except according to the practice observed in khigland.— I observe al•o this, that it he were acquitted here of this crime, he would still he liable to a bet: 8 011d trial. (The Lord Advocate spoke across the t —'Coe Lord Advocate says th tt he cannot, and I kuow to what lie alludes; but I will satisfy rut Lordstitos, that he is erroneous. By a particular clause in this statute the ptisoner'cannot be tried a second time for administeriug unlawful oath, is treason. If ac. quitteJ of that crime here, it cannot be laid agaia as an overt act of the crime of treason ; and to this effect he has the benefit of his present trial. But it is here laid, that he was engaged in a variety of treason able practices; from whials it is interred, that the oath is unlawful ; but-if these be stated to a Jury, and he be acquitted, toe verdict will' not present the Lord lecontese is, that day from layin z a n iadictment tor treason. There is nothi ng i n t h e act to , revent this. I'h al ci4 that he shall not le vita again for qlie same feet: What then would lot the result here ? ft would be a public . precognition taken by the Lord Advocate, in order to enable him iu another trial to convict the party of high treasno ; and there °lightly twenty Wats fur oaths, all with the very view of obtainiig evidence of accession to treason, in order that a zonviction may take place in the twenty first trial on such a charge. I pia it to your Lard ships, it oppression of Otis kind could be endure.!? I have :hewn express authOrity for saying. that one crime cannot be us of os a means of convih ing for ano ther. Now, nothing is here sot fart') in order to prove the extent of this oath, except facts which infer these heinous crimes, and which thereforecannot be td mitte to proof. ‘Srliat conclusion are we to draw trien this ? That the whole narrative of this minor nem he pluck ed out from the libel, as containing nathhot but what is irrelevant and incompetent. Nothing then would be kit but the oath. I should than read the word:of the oath, and trust, that if you are convilicad that the words did not pdrport the crime of ere tom, the inten tion would be nothing; the whole question would be. Whether the words of the oath themselves have Or have not the effect, of imposing 'an holawful obligation? It then the narrative of this indictment be struck out, I ask is there a Teat.: minor left ? What is a specific minor ? It is one which sets forth a full and accurate detail of all material circumstances attend ing the cos' t and the only material circumstance in this mitior is, to extract and elicit °et of innocett worSea hirimt *meaning from their obvious one; hut if you strike out the narrative, theie 'is no one tact OK lOrth from which it is poistble to draw this inicrence, and consevently the miner is altogether ittiperlect. I know not what may be the practice on the other side the Tweed, for I do not know the diii• tails of the criminal pros dire there, but I know well that in Scotland we are accustomed to retpure minute correctness in our forms ; and I can,only say, that our best established forms would be in vatted it you al low the minor proposition to go as it is to a jury. ' Mr. Dutiatuntao, for the Crown, maintaitted, that the indictment was drawn conformably to' the este- Wished principles of the Low of Scotland. It was not necessary. as by the law of Engl Ind. where mu:- der was committed, to state exactly or. what part of the body the wound was inflicted ; it was sufficient to say that the person was murdered by a blow from a letliel weapon. Here the objection was, that the prisoner was charged with conspiracy, without say ing with whom. Now, in the major proposition of the indictment, the exact persons are named to whom the oath was administered. The oath was clearly art unlawful one—it bound persons to ere& an act by both moral and physical strength. The ttime here charged is not treason--it is upon an express Act of Parliament fur preventing the administerieg and taking unlawful oaths ; and if 'the whole physical force of these conspirators had been cat tied into effect to procure Annual Parliartients and Uaiversal Suf. (rage, then it might have amounted to the levying war against- the King. The Smote-too Gee CTRL followed on the same side. Mr.Coetni replied for the prisoner, ittld stipported. at Considehabtelength, the arguments of Mr. Cransteen. The JUDGES shortly gave their op:nin:3, stating * The importance of the case, and the necessity for dello". rawly limning their opinions. They thereto:* ordered informations to le given in upon the case; and tills arid, as well as that of OPAhnire, melt therefere stahl ova° until their Lordships tenon front the Citcuitrh The Trial of the MancheVer,Conlpirators, eal7(1.1" 71. P.ll. laterr. ," nine In t•untber, stands °vs.r unttl th 4 nett tass . :stka They:turn)* rs are acll`serty to fitesl good and etalieienz ba 1. I'te c:reties rey t 'r.st! are b st two of X2O cads Otte ind vtilnals the; o.el‘t a in ti..o)•. uotwstftranclinz v Wet. to prove site Forma theirli!ssnde ;tad connelions, not tit is.d of ttt milte been bt'lett as late as Tl:ursdayfast.. • -- Acoorl , n to au article ita Martgretter are A ije, Saturday lac, the b:e thr,otestest ituirsrmeti..n to that OW: '.*l to ittwo War.sickshlse, St4rortivistre, Citerhire s cashiro, and Yorkshire ! Friday, a person . btionging to Nottirepharo, of the *trs• r.l was mil raretdel to LOW10:1, antler a wt., •ir , , 't secretary of ewe; and, after au ivennination at the iton,:oiort., comothred to Cohl Latta kie3ds entuu, 'you sucricku of fru s•.,tub'c — Widnes , Say at a Spec!a3 SeWants tuid ir. Ptretport, ttis 1!-7,.. •.trat,s agreed to et:goreis the Warch nad Ward Art, in ..1•a• and tha places adjsetnt. The mother of //Odd Digfr, who was rrote.lPt Nottingham last week, stied ut excessive gr:e: 0)1 7:i. day st'nnight. Monday last, an alarming Ere 'note nnt h tl*e Brown Paper Mills, situate at Tovill, in K n:, be 'longing to Mr. Jona Pixa, which for s threatened.destructioe to the whole Frcuo,es, but tjte wind 'slowing in a northerly direction, the flu, havily prevented kora extenallig tardier budding wl:cre tLe fite commetw:l. flaillt.l wce her eLaa