At Edinburgh, on the 9th of April 1817, William Edgar and John Keith were placed together at the bar of the High Court of Justiciary. The indictment read before them described far more than a mere gathering. It alleged that secret oaths, sworn in Glasgow, bound their adherents to a political brotherhood, to parliamentary reform, and, in the contention of the Crown, to the contemplated use of force. The penalty ordained by the statute invoked was death. Yet the question the judges were called upon to examine at length was at once narrower and more perilous: ought an engagement to be deemed criminal when its words promised both reform and recourse to “physical force,” without distinctly specifying the particular overt act performed by each of the accused?
The indictment set forth two assemblies. The first was alleged to have taken place on the 1st of January, at the house of William Leggat, a vintner in Tradeston, near Glasgow; the second, on the 4th of January, at the house of Neill Munn, an innkeeper and stable-keeper in Ingram Street. The names varied within the printed text, the localities were qualified by the phrase “or elsewhere,” and the dates were offered with alternative averments. This drafting was by no means an impartial relation of the facts: it was the libel of the prosecution, which maintained that Edgar and Keith had administered the oath, caused it to be administered, or aided and assisted therein.
The oath recited promised to form a brotherhood among Britons deemed worthy of trust, to obtain the suffrage for adult males not disqualified by law, equal representation, and annual parliaments. It further bound each adherent to support these ends by moral or physical means, as circumstances might require, and never to reveal the members under pain of death inflicted by the society. To the prosecution, these words could not be severed from their covert character, nor from the capital menace hanging over informers. The oath aimed, they contended, at subverting the government and constitution by force of arms. For the defence, no such deduction flowed inevitably from a prayer for suffrage and parliamentary redress. The generalities of the libel could not supply the want of proof of a specific felonious intent attributable to each prisoner.
The argument laid bare the central difficulty. The statute cited by the Court visited with capital punishment any person who administered an oath, caused it to be administered, or assisted thereat, when the engagement purported to bind the party to treason, murder, or a capital felony. Yet it remained incumbent upon the Lord Advocate to demonstrate what the words import within their context, and what individual part Edgar or Keith had borne in the transaction. A collective vow might well declare a political design, but a criminal trial must establish the specific acts imputed to designated individuals. The Crown gathered under a single formula the contriver, the assistant, and him who had allegedly procured the swearing; the prisoners’ counsel insisted that these separate characters and the precise terms of the oath be strictly defined.
The record opens not upon the scene of a clandestine meeting, but upon the formal apparatus of the law. The prisoners appear, the libel is read, counsel dispute its relevancy, and the judges hear debate upon the construction of the statute. They order written informations on the relevancy of the indictment to be lodged by both parties. The inquiry had not yet reached the point of determining who swore an oath at such-and-such an address. It turned solely upon whether the facts alleged, if established by evidence, were sufficient in law to support a capital charge.
Thereupon the procedure parted. The source records an interlocutor deserting the diet against Keith, pro loco et tempore: the prosecution was abandoned for the present place and time, leaving him to be recommitted under a fresh warrant. Such an order is not a verdict of innocence; it leaves the truth of the accusations undetermined. It marked a procedural conclusion peculiar to Keith, whereas Edgar’s cause pursued a different course.
With respect to Edgar, the Crown had served a second indictment while the first remained pending upon the record. The prosecutor subsequently abandoned the former libel. The defence objected that a prisoner ought not to remain under the peril of two concurrent indictments for the same cause, and that the induciæ attached to the second libel had not run their lawful course. The judges weighed the authorities and procedural rules, without touching upon the substantive guilt of the panel. They ruled that a second indictment might lawfully be served whilst the first was still pending; the prosecutor having moved to desert the diet on the first, the Court deserted it accordingly, without prejudice to the prosecution under the second. The second libel having been served on the 3rd of May, fifteen free days before the diet of compearance, the preliminary objection was repelled. Edgar pleaded not guilty. The diet was continued to the following Monday, at ten of the clock.
At this point, Entry 699 concludes. The title promises April and May; the surviving record halts with the continuation of the cause. It delivers no verdict against Edgar, nor does it provide a final determination for Keith. Any sentence pronouncing them either convicted or acquitted would exceed the authority of the preserved text. In the reported proceedings, their fate remained suspended until the subsequent diet.
The volume next juxtaposes a separate prosecution, that of Andrew M’Kinley. It arose from the same climate of political oaths in Glasgow, yet it was neither the same trial nor the same prisoner. To prevent confusion in the proceedings, one must scrupulously distinguish documentary proximity from legal identity. The indictment against M’Kinley enumerated four assemblies: at Hugh Dickson’s on the 20th of December 1816, at Leggat’s on the 1st of January, at Munn’s on the 4th of January, and at John Robertson’s on the 5th of February. It placed him, moreover, at the scene of an arrest on the 22nd of February under the assumed name of John Brotherstone. These details stand as averments of the indictment, not as facts established by the extant excerpt.
The final deposition preserved relates specifically to the gathering at Munn’s. The witness swore that M’Kinley was present. He recounted that a man unknown to him read the oath and held up his hand. Yet, when interrogated by the Court as to whether M’Kinley was present at the very instant the oath was being administered, he could not affirm it: the apartment was small, several persons had gone out, and his recollection did not permit him to place the panel there at that precise moment. Mere presence in a room and aiding in the administration of an unlawful oath are not in law the same.
The Lord Advocate, who stated that he had relied upon earlier and more positive precognitions, observed that the testimony delivered at the bar fell short of what he had been led to expect. He conceded that the evidence adduced did not warrant pressing for a conviction, and acknowledged that M’Kinley was entitled to an acquittal. Counsel for the panel did not convert this surrender into a triumph. The presiding judge instructed the jury that they might find the panel “Not Guilty,” or pronounce the libel “Not Proven.” Without retiring from the box, they unanimously returned the latter verdict.
The Court thereupon pronounced an interlocutor assoilzieing M’Kinley and dismissing him simpliciter from the bar. The judge added a severe observation from the bench: in his view, the verdict did not signify that the panel was declared innocent of the charge. Such was his personal construction, delivered after judgment had been rendered; the formal decree, for its part, declared M’Kinley assoilzied and dismissed. The conclusion of the excerpt thus contrasts the verdict of the jury with the strictures of the magistrate, without warranting the application of either to the unresolved causes of Edgar or Keith.
Throughout this volume, the same form of oath traverses several distinct indictments, yet the administration of justice did not confound them into a single history. In Edgar’s case, the proceedings extended beyond the limits of this printed record; for Keith, the diet was deserted pro loco et tempore; for M’Kinley, a jury returned a verdict of “Not Proven” and the Court set him at liberty, while the judge delivered his parting censure. These three issues remain distinct. The political formula itself remains at the centre: a covenant of reform to its adherents, an overt token of treason to the Crown, and a text of disputed construction to the bench. Between the words of an engagement and the legal proof of overt acts, the trial reveals a wide interval, which procedural rigor measures far more faithfully than retrospective certainty.