Imatges de pàgina
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7. SAMUEL COOPER, Esq.
8. JAMES BRUCE, Esq.

9. GEORGE CALLANDER, Esq.

10. FRANCIS SIMPSON, Esq.

11. ALEXANDER GARTSHORE STIRLING, Esq.

12. JOHN HENDERSON, Doctor of Physic.
13. JOHN BAIRD, Esq.

14. JOHN KINCAID, Esq.

15. WILLIAM ARCHIBALD CADELL, Esq.
16. ALEXANDER LITTLEJOHN, Esq.

17. PATRICK MUSCHET, Doctor of Physic.
18. JOHN MURRAY, Esq.

19. JAMES RUSSELL, Esq.

20. DUNCAN ROBERTSON, Esq.

21. JOSEPH STAINTON, Esq.

22. THOMAS CAMPBELL HAGGART, Esq.

23. ALEXANDER RAMSAY, Esq.

R. MACDONALD, Esq. Sheriff.

A pannel of the above names was made out, and signed by the Sheriff in Court.

The Clerk administered the following oath to the Foreman of the Grand Jury, previously requiring the attention of the other Grand Jurors to their Foreman's oath.

"You shall diligently inquire, and true presentment make, of all such matters and things as shall here be given you in charge, or otherwise come to your knowledge, touching this present service. The King's Majesty's Council, your own, and your fellows, you shall well and truly keep secret. You shall present no person for hatred, malice, or ill-will; nor leave any thing unpresented for fear, favour, or affection, or for any reward, hope, or promise thereof: But in all your presentments, you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and knowledge. So help you God."

The remaining members of the Grand Jury were then sworn four at a time, as follows:

"The same oath that Mr Abercromby, your foreman, hath now taken before you on his part, you and every of

you shall well and truly observe and keep on your respective parts. So help you God."

The Cryer made proclamation for silence, whilst his Majesty's proclamation should be read.

The Clerk read his Majesty's proclamation against vice, profaneness, and immorality.

The Cryer made proclamation for silence, whilst the charge was delivered to the Grand Jury.

CHARGE.

Lord President.-Gentlemen, We are met here, under his Majesty's commission, to take trial of all treasons, and misprisions of treason, which may have been committed within this county; and I believe it is customary, on such occasions, for the presiding Judge to address the Grand Jury, before they retire to consider the bills of indictment which are to be laid before them.

In our situation, where we have to discharge a duty which may be said to be new to most of us, it may be particularly useful to take a view of the law, which we are now called upon to administer.

Trials for treason have been of very rare occurrence in this country. Not that we have been without materials in Scotland; for the two rebellions in 1715 and 1745 furnished a numerous list of traitors; but, by special statutes, the trials then all took place in England.

The cases of Watt and Downie, in 1794, are, I believe, the only trials for treason which have taken place in Scotland since the Union.

You know, Gentlemen, that, by the treaty of Union between this country and England, in 1707, it was most anxiously stipulated and provided, on the part of Scotland, that our municipal laws should be preserved entire. But, at the same time, as we were thereafter to become one people, -united under the same legislature,-governed by the same sovereign, receiving from him the same protection, and, therefore, owing to him, the same allegiance,-it was foreseen, that some provision must be made for regulating that

allegiance, and for punishing the breach of it. It was therefore declared, by the same article of the treaty of Union which saved our civil institutions entire, "That the laws which concern public right, policy, and civil government, may be made the same throughout the whole united kingdom."

In regard to the law of treason, this might have been done in three ways: either by compounding and digesting the treason-laws of both countries into a new code, to be common to both; or, by declaring, that the treason-law of Scotland should be the law of the united kingdom; or, that the treason-law of England should also govern Scotland.

The last mode was adopted, and wisely adopted; and, therefore, immediately after the Union, the act of 7th Queen Anne, cap. 21. was passed, by which it was enacted in substance, that the law of England, in regard both to the crime of treason, and misprision of treason, and to the form of trial for them, should, in future, be the law of Scotland as to treason, or misprision of treason, committed against the common sovereign.

Gentlemen, as to the form of trial, Scotland did not gain much by this change, for we already had a most admirable form of trial; by which every prisoner, accused of ordinary crimes, has as great advantages as the law of England indulges to persons accused of high treason.

By the law of Scotland, you know, that every prisoner must have a copy of his indictment, with a list of the jury and witnesses, fifteen days before his trial; and he is entitled to counsel to assist him in his defence, both on the fact and the law.

By the law of England, it is only in the case of treason that a prisoner is entitled to a copy of his indictment, and a list of the jury and witnesses, and that, too, only ten days before his trial; and it is a curious circumstance, that this indulgence, which we, in Scotland, consider as essential to a fair trial, one of the ablest, and most upright, humane, and constitutional Judges that ever sat on the bench in England, considers as of very doubtful expediency.

But then, Gentlemen, by the law of England it is farther

provided, that no man shall be indicted for the crime of treason, except on a bill found against him by a Grand Jury; and that the prisoner, when afterwards put on his trial, shall have right to challenge a certain number of the jury, without assigning any reason for it;-privileges, these, of no great moment in the case of ordinary crimes beween man and man, but which may be considered as of considerable importance, in the case of crimes committed in breach of the allegiance due from the subject to the sovereign.

But, while the advantage which we have gained in the form of trial is less material, that which we have gained, by adopting the English law of treason, in other respects, has been most important. The old Scots law of treason was by no means well defined; and it was much more severe and sanguinary than that of England, which had been well matured, and narrowed within limits as confined as seems to be at all consistent with the safety of the State.

What the old law of Scotland was, in regard to treason, it is now unnecessary for us to inquire; but whoever takes that trouble, will be sensible of the advantages which in this, as in all other respects, Scotland has derived from the union with England.

The law of treason, with which we have now to do, has continued nearly the same since the days of Edward the Third.

The statute of the 25th year of that great King, cap. 2. is the basis of the law of treason.

By the first branch of that statute, it is declared to be treason," when a man doth compass, or imagine, the death of our Lord the King, or of our Lady the Queen, or of their eldest son and heir."

At first sight, Gentlemen, this law may appear to be severe; inasmuch as it punishes, not the actual killing of the King, but even the purpose and intention of doing so. But the legislature was well aware of, and contemplated, the confusion and horrors which must, almost necessarily, arise from the violent death of the King; and, therefore, it was thought wise and prudent to check those dangers in the bud, and to prevent, as far as possible, the most distant approach to any

attempt on his life. It contemplated, that the life of the King is, in fact, the safety of the State; and, therefore, that it ought to be guarded with much greater vigilance, and with stronger barriers, than the life of any other person in the realm.

But although the principle be carried a little farther in the case of treason, it is, in reality, the same principle which is at the bottom of all criminal jurisprudence.

It never is the mere act, but the criminal intention with which it is committed, which is the object of punishment. Take the case of killing an ordinary man.

A man is not punished merely for killing another, unless he has done so with an intention more or less criminal.

A man, on his trial for murder, may admit that he killed the deceased, but, although his doing so will be presumed to be done with a murderous intention, he will be allowed to prove that it was otherwise; and if he prove, that it was by pure accident, he will be altogether acquitted, for want of the criminal intention. Nay, though he killed him wilfully, yet if he prove that it was in strict self-defence, he will also be acquitted, from the same want of criminal intention. Or if he prove gross provocation, it will mitigate the criminal intention, and reduce the case, in the scale of guilt, from murder to man-slaughter, or culpable homicide.

Gentlemen, the same may be shewn to be the case in all crimes whatever. It is not the act done, but the criminal intention with which it is done, that is the object of punish

ment.

In ordinary crimes, however, Gentlemen, you know that the criminal intention must be carried into full effect before

it can be punished to the full extent. To constitute murder, there must not only be an intention to murder, but a man must be actually killed. To constitute theft or robbery, there must not only be the felonious intention, but the theft or robbery must be actually accomplished.

If these crimes have not been actually accomplished, though the criminal may have been prevented by the merest accident, it is not murder or robbery; but, even in all such cases, the criminal intention will be punished, under the

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