Besides, there is another set of individuals about to be arraigned at this bar immediately, who are charged with having committed the same crime of high-treason within the same parish, without any greater specification as to time, place, or circumstances, than is given to those who now stand before your Lordships. How are my clients now at the bar to distinguish betwixt their case and that of the men who are to follow them in the order of arraignment?

In the law of Scotland, such a loose, vague, and indefinite charge would not be suffered to stand for one moment before a criminal court; but the practice may be different in England. I have endeavoured to point out what the law appears to be from the authorities I have quoted; and that law seems to warrant no such indefinite charge as appears on the face of the present indictment. From the case also which I have quoted, the subsequent practice seems to have been in conformity with the law, as laid down by Hale and Hawkins.

In order to ascertain the practice of late years in England, I have looked into the more recent writers on the subject, and I find them all directly supporting me in what I have endeavoured to maintain. Mr Chitty, in his "Practical Treatise on the Criminal Law," lays it down expressly as recent practice, that "wherever the place is generally alleged, the law will intend it to be a vill, unless the contrary appears on the record; and, therefore, where a parish is mentioned which contains several vills, this will never be supposed, but must be pleaded in abatement.”—Vol. I. p. 197. And he cites many authorities, which, however, it is needless to enlarge upon; as Co. Lit. 125, and 6 Co. 14, b; 1 Burr. 337.

Another late writer, whose authority as a living author is of no small weight, I understand, with English lawyers, I mean Mr Starkie, lays down the same rule of practice in his "Treatise on Criminal Pleading." At p. 59, vol. I. of that book, he states, that "whenever the place is generally alleged, the law will intend it to be a vill, unless the contrary appear in the record. If, therefore, a fact done in a vill within a parish which contains several vills, be alleged to have been done at the parish generally, it will be intended

that the parish contains but one vill; and therefore, to take advantage of the defect, the defendant must plead in abatement." This writer also, in treating of the Statute of Additions, lays down the same doctrine as applicable to the addition of a prisoner in a case of outlawry before the exigent is awarded, from which an argument in analogy is offered, but which I abstain from enlarging upon, as I fear I have already detained the Court unnecessarily long.

I therefore shall conclude by stating, that I am in a situation to prove, that the parish of Falkirk, which is laid generally as the place at which the crime charged in the indictment was committed, consists of a variety of vills; or, as Tomlin says, they may now, from the alteration of times and language, be denominated "common towns." It is a parish of very unusual extent, and there are no less than seven different towns in it, of one description or another. These are Falkirk, Grahamstone, Beansford, Lawrencetown, Camelon, Carronshore, and Grangemouth, all in the parish of Falkirk. Now, I submit, that this indictment ought to have specified to which of these different towns the crime charged had a reference. It ought to have pointed out more specifically in what part of the parish the crime was committed, in what vill, or near what vill; and not having done so, I maintain that, in point of law and practice, (though of the latter I speak with peculiar diffidence,) this indictment ought to be quashed.

I cannot sit down without apologizing to the Court for having detained them so long. But I felt that I had a duty to perform towards these unfortunate men, paramount to any feelings of delicacy, and I have discharged it as well as I was able. If there be any thing in the objection I have enlarged upon, your Lordships will not fail to give effect to it; if, on the contrary, there be nothing, you will at least do me the justice to be assured, that I have stated this objection from the best of motives, and that nothing but the interest of the prisoners at the bar, which I feel deeply, could have induced me to encroach so long upon your time and patience.

Lord President.-The objection has been extremely well stated, Mr Cullen, and you have done your duty.

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Mr Serjeant Hullock.In rising to answer what has been said, I shall not occupy much time; and I may venture to assert, without fear of contradiction, that this is the first time such an objection was ever made.

There was no occasion for the learned gentleman's apology, for his industry and learning have enabled him to collect all that could be said on the subject.

But, I say to your Lordships, that if the place is wrong laid in this indictment, there has not been one indictment since I belonged to the profession-(and I speak in the hearing of another person, one of your Lordships, whose knowledge on the subject is unquestionable)—there has not been an indictment heard and tried, which has not been laid as in this indictment, and no such objection was ever brought forward except in one instance, where it was repelled.

The reasons upon which this objection has been founded, has long ceased to operate in the law of England. Formerly it was necessary to summon the array from the "vill," or vicinage of the place where the crime charged was committed, and it was a challenge to the array, if not so summoned; and the law continued so, in point of fact, for a long period, in criminal and civil proceedings. But inasmuch as it is now notorious to every one that the juries are not summoned from the "vill," or vicinage, but are not even summoned from the parish in which the "vill" is situated, the rule, in point of fact, has so far ceased, that now it is held in England that a venue laid in a county is sufficient.

The reason having ceased, the law ought to cease with it. What is the objection here? It is founded on two authorities. Hale and Hawkins are great authorities,-men of high rank, talents, and legal knowledge. But the learned Counsel will excuse me, if I beg leave to say that the statements of Mr Chitty, or of Mr Starkie, are not to be considered as authorities. I would as soon take the dictum of the learned Counsel himself, as that of any living authority. They both rest on an authority, but they do not go to any legal principle; and therefore, if the authority is well founded, or former practice has been deviated from, they just leave the matter where they took it up; they do

nothing but state what they find in the old books subject.

The learned Counsel misconceived a case which he cited: That was the case of an appeal; and it will be found, on a minute investigation into the subject, that the decision was not such as was represented. And in appeals, there is infinitely greater strictness required than in an indictment. The case referred to was no decision of the point in question, but merely, that if it was an objection, it was to be stated in abatement. (Here Mr Serjeant Hullock read the report in Salkeld at length.)

The objection, if founded at all, is bottomed on, and must be sustained by, the quotations from Hale and Hawkins. In point of practice, there never was an indictment drawn in which it was not alleged in this way.

Are we bound to prove the overt act in the parish where it is laid? By law, if we prove it within the county, it is enough. Then, upon what principle of law, or of common sense, (upon which the law is founded) can it be contended that the place in this indictment should have been more specifically described?

There is no such thing as a township in Scotland. A vill in England, is not three or four houses. It means a place where there is a constable. The whole basis, therefore, of the argument fails. I speak in the hearing of those who know the law well. A vill, I say, is not merely five or six houses.

Lord President. Suppose the facts were stated to have happened in the open country?

Mr Hullock.-True;-and there is no such thing as a vill in Scotland. In England, vill and township are synonimous of the same legal extent and meaning. There must be a constable; and where you point out a constable, there is a distinct vill.

The Lord Chief Baron.-I doubt, Mr Cullen, whether there be any thing in Scotland analogous to a "vill" in England,

Mr Cullen.-Your Lordship has drawn my attention to Mr Hullock's argument of analogy. If a vill, or town

ship, in order to be entitled to that importance, requires a constable, there are various such townships in the parish of Falkirk. We are in a situation to prove, that in the parish of Falkirk there are different towns, some of which have been erected into baronies; and, in analogy, is not a baron-baillie to be considered a sufficient officer? And will not a barony then be considered a sufficient "vill" in the eye of the law of England?

Mr Serjeant Hullock.-The question, I apprehend, is,— Is this an objection in the law of England, upon which your judgment can proceed? I aver, it is no such thing; because the parish is a sufficient venue. Can the contrary be shewn here? It could not be shewn by the English law. You might say, here are twenty or thirty hamlets, but that would not answer.

The learned Counsel knows, that this plea is to be put on parchment, and to be sworn to. In what way could he shew there was any particular vill? Would he state there was a barony? Would that do? The law, with regard to vills, has no analogy to the Scotch law as to baron-baillies or baronies.

In England, every indictment for High Treason which has been tried, down to the moment I address you, has been laid in this way. And when I consider the learning and the talent which have been employed on those several occasions, when every thing was done that both learning and talent could do for the persons under trial, I am bound to suppose, in candour to the gentlemen engaged, that this objection did not escape them, but that they thought there was nothing in it, and passed it over.

I may here notice the case of Thistlewood, in 1817, where the venue was laid in the parish of Marie-la-bonne, and not in any particular vill. If we are to talk of vills, there are scores of them there. This very objection was taken, but the Judge said, he never heard of it before.

I have also to speak to the practice of another Judge-Mr Justice Holroyd. He overruled the plea; and that plea did state, that in the parish there were various townships with

constables.