been late out the night preceding, and it was found early the next morning by the maid-servant in his dining room; and almost immediately after, it was taken away and kept out of view. Something was afterwards said by Mrs. Downie, in the presence of the servantmaid, about finding this instrument in the dining-room. She said to the prisoner, what have you done with the large dividing-knife or carving knife, which Charles found in the dining room? or something to that purpose; upon which the prisoner said, he had locked it up. This circumstance appears unfavourable to the prisoner; although it is a possible case, that the instrument may have been left in the room, not by the prisoner, but without his knowledge by his son, who appears, from the servant maid's evidence, to have risen out of his bed at an early hour in the morn ing, and taken it away, when he heard her in the room. Another circumstance, which seems pretty clearly brought home to this prisoner is, his accession to the inflammatory address intended for the fencible soldiers, and to the use made of it at Dalkeith, as sworn to by several witnesses. The effect of this I submit entirely to yourselves, being doubtful whether any weight ought to be given to it, as not being specifically stated in the indictment; though there are general words in some oft the articles, under which the counsel for his majesty endeavoured to show, that any attempt to excite rebellion or insurrection in the country might be introduced. With these observations, I shall leave the case in your hands. If, upon due consideration of the whole, you shall be of opinion, that the prisoner, and those with whom he associated, had no bad design against the king or government of this country; that they are unjustly accused of something they had no idea of themselves; in short, that the prisoner is an innocent man; or, if you think it a doubtful case, your leaning ought to be for innocence. But if, on the other hand, from all the circumstances that have been brought in evidence before you (which I have stated as well as I could do at this late hour), you are satisfied that there is sufficient evidence to bring home to the prisoner any of the overt acts which are necessary in point of law to constitute the crime of high treason; I need scarcely observe to gentlemen of your situation and character, that you are bound, by the solemn oath which you have taken, and by the duty which you owe to yourselves and the country, to pronounce a verdict against the prisoner, whatever the consequence may be. It is not your province to show compassion or mercy. If any such idea can arise at all, it must come from a different quarter. It is your duty to find the truth, and nothing but the truth, and this I have no doubt will be understood by you, The jury retired for about half an hour; ‡ Clerk of Arraigns.-David Downie, hold up your hand [which he did].-Gentlemen of the jury, look upon the prisoner. How say. ye? Is the prisoner guilty of this high treason, whereof he stands indicted; guilty or not Guilty. Foreman of the Jury.-David Downie is Guilty. Clerk of Arraigns. Gentlemen, what goods or chattels, lands or tenements, had he at the time the high treason was committed, or at any time since, to your knowledge? Jury. None to our knowledge. Clerk of Arraigns.-Then hearken to your verdict, as the Court hath recorded it. You say, that David Downie is guilty of high treason, whereof he stands indicted; but that he had no goods or chattels, lands nor tenements, at the time of the high treason committed, or at any time since to your knowledge. Jury. Upon account of certain circumstances, we desire to recommend the prisoner to mercy. It being past four o'clock in the morning, on Saturday, September the 6th, the Court adjourned to twelve o'clock on the same day. Saturday September 6th. The Court met this day at twelve o'clock, agreeable to adjournment. The following judges were present; lord president, lord chief baron, lord Eskgrove, baron Norton, lord Dunsinnan. The prisoners Robert Watt and David Downie being brought to the bar, Mr. Hamilton counsel for Robert Watt said: My Lord President ;-In the situation in which I am placed in this case, I feel myself called upon to let no point or circumstance whatever escape, which I conceive can be of any aid or benefit to the prisoner, and to the defence of his life with which I have been entrusted;-I therefore, my lord, feel it to be my duty, now to state in arrest of judgment upon the prisoner at the bar, 1st, that there is an absolute nullity in the commission itself, under the authority of which this Court has acted; and, 2nd, that there is a manifest informality and defective style in the indictment, which must necessarily prevent any judgment being legally pronounced upon it. Upon the first of these pleas, I must call the attention of the Court, to the act of parlia *This was, in the original edition of Downie's trial, reported very incorrectly: Mr. Hamilton has furnished me with an accurate account of his speech, of which I have here availed myself. no less than three different positions. The lord president, with the lord chief baron, and Mr. baron Norton, might constitute a court. so might the lord president, with the lord chief baron and lord Alva; and in like manner, with lord Alva, and Mr. baron Norton. vet not one of these four judges, though all in the commission, are lords of justiciary. It is therefore I submit, a clear and demonstrated proposition, that the commission is not authorized by the statute; and it will be no answer to this objection, to state, that no such courts as have been supposed, have, in fact, been formed; as the objection is not facti, but juris-not to what has taken place but to what might have taken place according to the terms of the commission. But it is sufficient to make out, that this commission has overleaped the enactment of queen Anne, by force of which alone, it could exist at all; and it is on that account unauthorized and illegal, and no measures which have followed under it, can be sustained or receive effect. ment 7th of Anne, c. 21, " For improving the union of the two kingdoms," by which it is enacted, "That her majesty may issue out commissions of Oyer and Terminer in Scotland, to such persons as her majesty, her heirs and successors shall think fit; and that three of the lords of justiciary be in the said commission of Oyer and Terminer, whereof one to be of the quorum." And it is also proved, "That where any such commission of Oyer and Terminer, shall issue, pursuant to this act, and is to be executed within any district where there is a justice general, or person having right of justiciary, who had jurisdiction in cases of high treason, at the time of making this act, from and after the time that such right he made appear before the lords of session and by them certified to the lord chancellor of Great Britain; such justice general, or such person having right of justiciary, or their respective deputy, shall be in the said commission and one of the quorum." Now the meaning of being one of the quorum as pointed out by the statute, unquesYour lordships will readily consider, that tionably is precisely the same as a sine qua the strictest interpretation is always most non, or one without whom no legal court can justly given to statutes which contain any be constituted, and this restriction is appli- enactments relative to criminal justice: this cable only to the lords of justiciary; three of rule is fixed in favorem vitae, and admits of whom must at all times, according to the sta- no exception or deviation; and upon that printute, be constituent members of the court for ciple, the same strictness of interpretation which the commission is issued. But what must be given to the statute of queen Anne, does the royal commission in the present in-which introduced and established the court stance authorize? And your lordships will before whom an offence of this high criminal accordingly mark, whether that commission nature can be brought to trial. It is not has been issued in the terms authorized by indeed necessary to argue for a limited and the statute of the 7th of queen Anne; and if narrow construction; for there cannot, I subit be not I do maintain that it is no legal com- mit, be a doubt, that a commission has been mission, and nothing which has passed issued, not in terms of the statute, but which under it can receive effect. It is accordingly cannot in the smallest particular be dissented quite obvious, that this commission does not from, and as the commission goes beyond conform to, but on the contrary, it goes beyond the rule therein prescribed, it had no just authe authority and sanction of the statute un-thority; and no judgment in the present inder which alone it could legally be granted. This I shall demonstrate in the clearest manher possible. For besides, three lords of justiciary, namely, the lord justice Clerk, lord Henderland and lord Eskgrove, to whom the three other judges of that court are added; who, or any one of them, are declared and required to be necessarily of the quorum, the lord president of the court of session is also, by the commission, declared to be one of the quorum. Had the judges of the justiciary only, been declared to be of the quorum, the commission, would in all respects, have been authorized by the statute of queen Anne; but the insertion of the lord president as one of the quorum, was a manifest deviation from the statute, and such as I conceive, must annul the commission, and the court, and all the proceedings which have followed under it. For let it be observed what might have happened, according to the framing of this commission. A court of Oyer and Terminer, might have been formed in which there was not one of the lords of justiciary, and in direct contradiction to the statute: this also in VOL. XXIV. stance can be pronounced. Though I do, my lord, rely, with much confidence, upon what I have just now stated, it is proper, at the same time, to call your attention to the second ground of objection, upon which I contend that no judgment against the prisoner at the bar can be pronounced. Your lordships are fully aware, that in all indictments or charges of a criminal nature, certain technical words and phrases are uniformly required. This is a rule in our own procedure; and according to the law of England, on which we are now proceeding, peculiar nicety is, I find, observed. I have looked into some of the law books and precedents, and I have found that in any indictments, for felony, whether for larceny or murder, though the precise day is stated upon which the. malicious or evil design was conceived, with the aggravations, yet that it is farther necessary to connect the completion of the crime by the fact which indicated and was proof of the intention, both as to time and place, with such preconceived intention, that being the essence, and the fact, the proof of the crime. In the case accordingly of an indictment for murder, wherein a precise day was affixed to the conceived malice, it would, notwithstanding, as I understand, be defective, unless the place where, and the time of giving the fatal stroke, were connected with the time of forming the design to kill. The words of style adopted to make out and announce that connexion, formerly were adtunc et ibidem; and since the statutes 4th Geo. 2nd, c, 26, and 6th Geo. 2nd, c. 14, then and there are the technical expressions in observance. it.-The rule of style in an indictment for murder is equally applicable to a case of treason. The compassing and imagining the death of the king, and the traitorous design to do so, is the crime charged: and in order to make the indictment complete, the overt act or acts specified, should have been connected by a then and there, with the period at which the evil imagination, manifested by such acts, was conceived.-This has not been done, so that the indictment is rendered, I conceive, defective. And at all events the precedent in 1746, which has always been regarded as the fixed legal style of an indictment for criminal charges of this description, has been lost sight of and disregarded. And upon these grounds, accordingly, I move your lordships, that no judgment upon the prisoner can in the present instance be legally pronounced. Mr. John Clerk, counsel for Mr. Downie, stated, that though, in point of law, the ob jections urged by Mr. Hamilton, would, if sustained, be equally available to his client; yet he did not mean to insist upon them. He had been recommended to mercy by a most respectable jury of his countrymen, and humbly threw himself upon his majesty's clemency. Mr. Anstruther in answer to the second of Mr. Hamilton's objections, stated that it was undoubtedly necessary, when the time and place was specially condescended upon only in the first count of the indictment, to repeat the words then and there at the other counts: but that, in this case, the time and place were especially condescended upon at every separate count in the indictment. In support of these positions I must refer your lordships to lord chief justice Hale, who in the Pleas of the Crown, part 2, c. 25, "Concerning the form of Indictments," p. 178,-observes that "In an indictment of felony, there must be adtunc et ibidem to the stroke or to the robbery, and the day and place of the assault is not sufficient, and this in favorem vita. And therefore it is usual to repeat the adtunc et ibidem to the several parts of the fact, as in larceny or robbery from the person," and he then states various examples -thus: "A is indicted quod primo die Maii. Anno 2ndo Eliz., apud C., habens in manú suá dextrá gladium, &c. percussit B., and it is not said adtunc et ibidem percussit, quashed, because the day and year and place, relate to the having of the sword, not to the stroke." Serjeant Hawkins, book 2, c. 25, of Indictment, and in regard to specifying time and place, gives an opinion to the same import, as to the necessity of the terms adtunc et ibidem being repeated in the subsequent clauses of an indictment; and it is observed, that "If omitted, judgment may be arrested Strange 901." This rule has, so far as I can learn, been uniformly followed and observed In answer to the other point argued by Mr. in practice. In the indictment against Ha- Hamilton, Mr. Anstruther stated, that the milton, governor of Carlisle, in the year 1746, meaning of the legislature, in declaring, that which appears to have been the precedent, three of the lords of justiciary should be in and was the rule upon which all the indict the commission, and one of the quorum, was, ments in the trials at that unhappy period that the common people of this country were framed, and which is given at length by might not think that they were to be tried sir Michael Foster in his Report, p. 5, 6, it entirely by strangers, but that some persons will be found, that after specifying the precise acquainted with the laws of their own country place and date to the main charge of the trea- should be among their judges. He contended son, the aggravating circumstances, and va- the act of parliament had been completely rious overt acts, are carefully connected with complied with in the present case. The lord the technical words of reference then and justice general, and lord justice Clerk, tothere, which are accordingly cautiously re-gether with the whole judges of justiciary peated in relation to all the acts charged. Reads that indictment from Foster]. And this rule was confirmed in the case of Rhenwick Williams, tried on 8th July, 1790, reported by Mr. Leach, case 226, where the omission to connect the acts charged by the copulatives then and there was fatal to the indictment. Now upon looking into the indictment in the present case, it certainly does not appear that the precedent in 1746, quoted from Foster, has been followed. It has, on the contrary been entirely departed from, inasmuch as the connecting words then and there, are not from beginning to end to be found in were in the commission; and the lord justice general, lord justice Clerk, and two of the commissioners of justiciary, were declared, along with the lord president of the court of session, to be of the quorum. Mr. Anstruther contended, that it was not the meaning of the statute that none but the lord justice General, lord justice Clerk, and lords commissioners of justiciary, should be a quorum, but that one of them should be of the quorum, along with such other persons as his majesty should ap point. He also stated that one, at least, of the judges of justiciary, who were of the quorum, had been present at all the diets of court; so that nothing, in point of fact, had occurred, which would authorize any objection upon the statute. The Court unanimously repelled both objections. After some steps of form, proclamation was then made by the cryer, and silence being ordered, Mr. Knapp desired Robert Watt to hold up his hand; upon which he read to him shortly the accusation for which he was tried, and said "To these charges you plead Not Guilty, and cast yourself upon God and your country; that country has found you Guilty.Have you any reason to assign why the sentence of the law, which is Death, should not pass against you?" The same he recited to David Downie. Both prisoners remained silent. The Lord President then addressed the pri soners as follows: Robert Watt, David Downie-That part of the duty which remains to be performed by this Court, is a most distressing one, but not the less necessary. You had the misfortune to be brought to that bar, under the heavy charge of high treason; and after the fullest inquiry, and most fair and impartial trial, you have each of you been convicted, by the unanimous voice of most respectable juries of your country, as guilty of that atrocious crime. The evidence on which the verdicts proceeded, was such as left no room for doubt or hesitation; and the public must be completely satisfied, that the consequence was unavoidable. Had your designs been carried into execution, by an actual insurrection of those deluded men, whose leaders you appear in a great measure to have been, although in the end you must have failed, yet, in the mean time, such a scene of unutterable distress, confusion, and bloodshed must have ensued, that the very idea of it is horrible. Resistance to an established government can only be justified by the plea of absolute and indispensable necessity. And this can never exist without the most unequivocal proofs of it; and the most general concurrence in those measures which become necessary for obtaining relief. Such was the situation of this country at the period of the Revolution in 1688; but no one can, with the smallest degree of truth or candour, state, that such necessity occurs at present, or in truth that there has been less ground of complaint, at any period since this country had an existence. No material circumstance has happened in the present reign, which should have given occasion for any degree of discontent; it is to be imputed alone to the wicked designs of bad and desperate men in this country, that such daring attempts have lately been made here, and in other parts of the British dominious, to destroy the tranquillity and happiness of the country; but it is to be hoped, that the vi gilance of the executive government, and the strong arm of the law, will be sufficient for our protection; and I also hope and trust, that what has now befallen you, will be such an admonition to others, that there will be little danger of such execrable plans being again thought of, for a long period to come. You have yet a little time to reflect seriously upon your past conduct, and to prepare for that awful change which is soon to follow. Let me exhort you to make the best use of your time, and to apply for assistance to those who can assist you in such important meditations. It only remains to pronounce the sentence of the law, which is in these words: SENTENCE. The Court doth adjudge, that you, and each of you, be drawn upon a hurdle to the place of execution; that you be there hanged by the neck, but not until you are dead; and that being alive, you, and each of you, be cut down, and your bowels taken out, and burnt before your face. That each of your heads be severed from your bodies; and your bodies divided into four parts; and that your heads and quarters be disposed of as the king shall think fit; and so the Lord have mercy upon your souls! This is the sentence of the law; and I give farther notice to you, and to each of you, that this sentence will be carried into execution, upon Wednesday the 15th of October next, between the hours of twelve at noon, and four in the afternoon, in terms of a precept to that effect, which will be delivered to the sheriff; this notice I give you by order of the Court. They received the dreadful sentence with much firmness and composure, and were immediately conducted to the Castle. The following account of the execution of Robert Watt is taken from the New Annual Register for the year 1794 :— "Edinburgh, October 16. Yesterday, about half-past one o'clock, the two junior magistrates, with white rods in their hands, white gloves, &c., the Rev. Principal Baird, and a number of constables, attended by the town officers, and the city guard lining the streets, walked in procession from the council chamber to the east end of the Castle-hill, when a message was sent to the sheriff in the Castle, that they were there waiting to receive the prisoner, Robert Watt. immediately placed in a hurdle, with his back to the horse, and the executioner, with a large axe in his hand, took his seat opposite to him at the farther end of the hurdle. ile was "The procession then set out from the Castle, the sheriffs walking in front, with white rods in their hands, white gloves, &c.; a number of country constables surrounding the hurdle, and the military keeping off the crowd. In this manner they proceeded till they joined the magistrates, when the military returned to the Castle, and then the procession was conducted in the following order-The city constables; town officers bare-headed; bailie Lothian, and bailie Dalrymple; Rev. Principal Baird; Mr. Sheriff Clerk, and Mr. Sheriff Davidson; a number of country constables; the hurdle painted black, and drawn by a white horse; a number of country constables. The city guard, lined the streets to keep off the crowd. "When they had reached the Tolbooth door, the prisoner was taken from the hurdle, and conducted into the prison, where a considerable time was spent in devotional exercises. The prisoner then came out upon the platform, attended by the magistrates, the sheriffs, Principal Baird, &c. Some time was then spent in prayer and singing psalms; after which the prisoner mounted the dropboard, and was launched into eternity. "When the body was taken down, it was stretched upon a table, and the executioner, with two blows of the axe, severed off the head, which was received into a basket, and then held up to the multitude, while the executioner called aloud This is the head of a 'traitor, and so perish all traitors.'"-New Ann. Reg., 1794, p. 58. That part of the sentence which relates to being quartered, &c. had been previously remitted. David Downie, in consequence of the re commendation of the jury by whom he wis tried, received his Majesty's Pardon. 604. The Trial of THOMAS HARDY for High Treason, before the Court holden under a Special Commission of Oyer and Terminer, at the Sessions House in the Old Bailey, on the 28th, 29th, 30th, and 31st days of October, and the 1st, 3d, 4th, and 5th days of November: 35 GEORGE III. A. D. 1794.* ON the tenth day of September, 1794, a special commission of Oyer and Terminer was issued under the Great Seal of Great Britain to inquire of certain high treasons and misprisions of treason within the county of Middlesex. On Thursday, the second of October, the special commission was opened at the Session house in Clerkenwell: Present, the right honourable sir James Eyre, knt, lord chief justice of his majesty's court of Common pleas; the right honourable sir Archibald Macdonald, knt. lord chief baron of his majesty's court of Exchequer; the honourable sir Beaumont Hotham, knt. one of the barons of his majesty's court of Exchequer; the honourable sir Francis Buller, bt. one of the justices of his majesty's court of Common pleas; the honourable sir Nash Grose, knt. one of the justices of his majesty's court of King's-bench; the honourable sir Soulden Lawrence, knt. one of the justices of his majesty's court of King's-bench; and others his majesty's justices, &c. Lord Chief Justice Eyre.-Gentlemen of the Grand Inquest; -You are assembled under the authority of the king's commission, which has been issued for the hearing and determining of the offences of high treason, and misprisions of treason against the person and authority of the king. That which hath given occasion for this commission is that which is declared by a late statute, namely, "That a traitorous and detestable conspiracy has been formed for subverting the existing laws and constitution, and for introducing the system of anarchy and confusion, which has so lately prevailed in France;" a crime of that deep malignity which loudly calls upon the justice of the nation to After the commission had been read, the sheriff delivered in the panel of the grand jury, which was called over, when the follow-interpose," for the better preservation of his ing gentlemen were sworn : ♦ Taken in short-hand by Joseph Gurney. majesty's sacred person, and for securing the peace and the laws and liberties of this kingdom." |