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fact, as justifies his averment of a false oath having been taken, and shall ground a clear inference (if they be proved) concerning the situation of the pannel's conscience on the occasion." It thus appears, that in a charge of perjury, in order to make the libel relevant, it is not enough to assert that the prisoner has sworn a false oath. The prosecutor must point out in detail the circumstances on which he rests his averment, that what was sworn is false. If that be the case in a trial for perjury,-in the analogous crime now in question,-if the prosecutor libels words in themselves innocent, he must specify facts relevant and competent to be proved, in order to make out the proposition that these words were used with a guilty intendment—an intendment understood by both parties. Therefore unless you require a specification of facts, which I apprehend is essentially necessary to extract a guilty intendment from the words of this oath, in themselves innocent, you depart from one of the best established rules of the law of Scotland. What is said by Mr Hume as to trials for perjury, is equally applicable to a trial under this act.

I have already taken occasion to observe, that one of the most valuable statutes in our code is the statute of 1st Mary, cap. 1. It is in our code, for it is a law regarding treason, and of consequence introduced along with all the other laws of England upon that subject by the 7th Anne, cap. 21. I pray your Lordships to attend to the preamble of that statute of the 1st Mary: "That the estate of every king consists more assuredly in the love of the subjects towards their prince, than in the dread of laws made with rigorous pains; and that laws made for the preservation of the commonwealth without great penalties, are more often obeyed and kept than laws made with extreme punishments. And in special such laws so made, whereby not the ignorant, but also the learned, minding honesty, are often trapped, yea, many times for words only, without fact or deed done or perpetrated; and thereupon the queen calls to remembrance, that many, as well honourable persons as others of good reputation, had then of late (for words only, without either opinion, fact, or deed,) suffered death, and expresses her pleasure, that the severity of such like extreme dangerous and painful laws shall be abolished." This preamble explains the extreme danger and mischief arising from laws inflicting the pains of treason on offences which are not accurately defined, and more particularly for words spoken; and accordingly the whole body of constructive treasons were swept away by that act.

Now, the statute upon which the present indictment is founded introduced a constructive felony, on which it inflicts the same punishment as that which is inflicted in treason, at least in all material respects the same. I did not read the preamble of the act of Queen Mary, to throw blame on the statute now under consideration, but to shew the difficulty and danger attending the application of every law of this description, as the Legislature itself has clearly expressed in that preamble, But the statute having been enacted, what is the proper corrective for the evils to which I allude? I do not know what is the practice on the other side the Tweed, for I do not know the details of criminal procedure there, but I know that in Scotland the corrective is to be found in our forms of criminal procedure; and whatever defects there may be in the law of Scotland, there are some excellencies, and one of them is that minuteness of specification which the public prosecutor is bound to observe in his indictment. The proper precaution for preventing this statute from being made a source of oppression and injustice, is to observe our forms of criminal procedure; and I maintain one of our best forms will be neglected, if you allow a proof of the minor proposition here to go to a jury, when there is no specification in the libel to shew that the words of the oath were used in a sense different from their ordinary sense. Their ordinary sense, as I have endeavoured to prove, or rather as I think must be manifest at first sight, is perfectly innocent; at least it is not an obligation to commit treason. If this libel be allowed to go to trial under other Judges, the administration of any oath, of the oath of allegiance itself, might be made the ground of a prosecution under this statute. The author whom I have already had occasion to quote, says, that the rule of the minor proposition, containing a specification of all the facts on which the charge rests, was attended to anxiously, even in the worst times. We know well what are the times to which he alludes, indeed they are pointed out by the decisions to which he refers; namely, the period between 1679 and 1688, when your books of adjournal are stained with the most atrocious murders perpetrated under the colour of law-by Judges the most unprincipled that ever sat upon that bench. If in that period, and under these Judges, the rule in question was not departed from even in the trial of state crimes, it will not be departed from in these liberal and enlightened days, and while your Lordships preside in this Court. On these grounds, I relate to your Lordships with confidence what is the genuine conviction of my own mind, that this

is not a relevant indictment, and that if it be sent to a Jury, a precedent will be established fraught with the greatest danger.

[Mr CRANSTOUN made an apology for occupying the Court so long.]

LORD JUSTICE CLERK.-I express the opinion of the Court, that there is no reason for such an apology. We have all heard the very able, eloquent, and argumentative pleading for the pannel, with the most perfect satisfaction.

Mr DRUMMOND.-A very difficult task has devolved itself upon me, that of answering one of the ablest arguments which I ever had occasion to hear; and I have this impression so strongly on my mind, that unless I had some confidence in the merits of the cause which I am to support, I should feel the greatest diffidence in attempting to answer the speech of the learned gentleman. I trust, however, that the case will speak pretty strongly for itself; and my learned friend who is to follow me will, much more ably than I can do, supply what I may happen to omit.

The charge against the pannel at the Bar is for a statutory offence. He is charged with administering an oath of a particular description. The rules of law are clear with regard to the manner of describing a criminal act. The words of Mr Hume are, "That a libel is not good, unless it give such an account of the criminal deed as may distinguish this particular 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.”—(Vol. iii. p. 310.)

If this description of the duty of the prosecutor be cor rect, I apprehend this indictment must clearly go to trial; for it sets forth the crime charged in a manner to distinguish it from every other instance of the same sort of crime. The criminal deed is the administering of the oath, and the oath itself is set forth in the indictment. Even if it had not been in the power of the prosecutor to obtain the terms of the oath, yet, by this statute, it was competent to him to charge its purport. But the prosecutor has fortunately had more in his power, for he has obtained the oath itself, and he has recited it at length in the indictment.

Mr Hume proceeds afterwards to describe the manner in which the criminal deed should be set forth; and as the learned gentleman who went before me dwelt some time on

this subject, I shall be under the necessity of quoting at length Mr Hume's views of the duty of the prosecutor. (Mr Drummond here read from Vol. iii. p. 325. and subsequent passages, and maintained that the description of the offence in this indictment was sufficiently specific).

I apprehend that the prosecutor is correct as to the times and places, and the individuals to whom the oath was administered, as no objection has been stated to the indictment with regard to these points. And, considering the particular character of this crime charged, and that it is of a secret nature, and extremely difficult to detect, I think your Lordships must be satisfied, that the prosecutor has given as full and particular a description of it as the pannel could expect.

This is a crime, in many respects, of a very particular character. It is necessary, indeed, as was correctly stated by the learned gentleman, that the oath itself should bind to the commission of treason, or of some capital felony. It is not sufficient that the party administering the oath, or the party taking it, should have treasonable, or other criminal intentions; but it is necessary that the oath itself should bind to the commission of treason, or some other crime. This was most correctly laid down by the learned gentleman, and any inference which the prosecutor may think himself entitled to draw from the oath will not be sufficient, if it do not clearly appear that the oath itself is of the precise purport necessary to inculpate the pannel on the sta tute founded upon in the indictment. On this part of the case I am ready to meet the learned gentleman; for it appears to me very clearly that this oath does contain an obligation to commit treason, and that, upon a fair construction of it, no man of good sense can fail to be of this opinion. The oath says, "I will persevere in my endeavours to obtain for all the people in Great Britain and Ireland, not disqualified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation and annual Parliaments; and that I will support the same to the utmost of my power either by moral or physical strength, as the case may require." The learned gentleman stated, that the oath binds the person taking it to support the endeavours made to obtain annual Parliaments and universal suffrage, and he stated so correctly. He observed that the oath could not bind them to support what was not in existence, and that therefore it was to obtain, not to support, annual Parliaments and universal suffrage, things not in existence, that the oath had been adminis

tered and taken. It remains for you to consider, whether the oath to support with moral and physical strength endeavours made to obtain annual Parliaments and universal suffrage, is an oath which subjects those administering or taking it to the charge of administering or taking an oath purporting to bind those taking the same to commit treason? and upon that narrowed construction of the oath I join issue with the opposite Counsel.

It was said very ingeniously, that physical strength may be innocently employed in many ways for the support of endeavours to obtain universal suffrage and annual Parliaments-that it may be employed in the erecting of hustings for meetings to petition Parliament on the subject-that it may be employed in running about and soliciting Members of the Legislature to give their support to such petitions. These are certainly exercises of physical strength, but not of the kind referred to in the oath. The oath binds the persons taking it to use all their physical strength, as the case may require. The instances which have been mentioned of the application of physical strength are not the only ways in which physical strength may be employed, in order to obtain the objects spoken of; yet, by the terms of the oath, there is no limitation as to the kind of physical strength which the parties were to use. They were to use the whole of their moral and physical strength; and the terms force and strength have here the same meaning. If an innocent purpose only had been in the view of these persons, then why were they anxious for concealment ?— What follows in the oath? And I do further swear, that neither hopes, fears, rewards, or punishments, shall induce me to inform on, or give evidence against, any member or members, collectively or individually, for any act or expression done or made, in or out, in this or similar societies, under the punishment of death, to be inflicted on me by any member or members of such societies. So help me God, and keep me stedfast." This is a remarkable part of the oath, and surely such concealment was not necessary in erecting hustings, or doing any of the things which were suggested by the learned Counsel in his illustrations. There can be no use for such concealment, where lawful means are to be employed for the attainment of lawful objects. Every person who reads the oath must see that it proves in the strongest manner, that illegal objects were in the view of the parties. This is obvious, without travelling beyond the four corners of the oath itself. It is so obvious, that no argument can prevent the indictment from going to trial.