averment was inserted or omitted, it was thought the safer course to leave it out, because the indictment contained sufficient to warrant the judgment without it. This is what I shall endeavour to establish; but before I proceed to remark on the several allegations of the indictment, the Court will permit me to observe and to produce some authorities to prove that the averment, "that the party is a subject," is an innovation upon the old form of indictments for high treason, and by whom this innovation has been introduced, or why it has been latterly adopted I cannot discover. we have the opinion of my lord chief justice Holt explicitly declared in Cranburne's case, that this is sufficient; "for if it appear," says that great lawyer," that he has committed an offence against the laws of the kingdom, and against the duty of his allegiance, which is high treason that is enough. Conformably to these authorities and the opinion of sir Michael Foster, to the same effect,† in the late cases (even of subjects), particularly that of lord George Gordon, and the very case of De la Motte, which they cite, the words naturalem Dominum have been omitted. Since this omission, for what reason I cannot see, the averment, that the accused is a subject, has been generally inserted. I say generally, because it has not always been done; for, in an indictment preferred against a natural born subject, William Stone,§ in the King's-bench in England, for high-treason, in 1796, the second count does not contain either the averment that he was a subject, or the words naturalem Dominum suum, and yet, on that trial, on the part of the defendant, no exception was taken to the form of the indict mitted that the indictment was sufficient. The course of ancient precedents ran in these words: "Ut falsus proditor contra naturalem Dominum suum." This is evident from their inspection. I shall here cite a few, which are those of the king against Ayliffe,* against Horsley,t against Hayes, against lord Delamere, and against Hampden ; and to these I add the first count of lord Preston's indictment,¶ Rosewell's indictment,** and the indictments against Cranburne, Lowick, Rookwood++ and Charnockt. These were all cases of subjects, and yet the indict-ment; on the contrary it was expressly adments do not contain any positive averment that they were subjects; they aver only that the offences were committed by each of the parties"Ut falsus proditor contrà naturalem dominum suum." Now the words "naturalem Dominum suum" in the case of an alien, it has been long since settled must be omitted. My lord chief justice Holt in Cranbourn's case, says expressly, "No doubt it would be a fault to have put in contrà naturalem Dominum suum where only a local allegiance is due."§§ This opinion is founded upon a solemn decision in Hilary 36 Eliz. when Stephano Ferrara de Gama and Emanuel Lewis Tinoco, two Portuguese by birth, came into England under the queen's safe conduct, and living there under her protection, joined with Dr. Lopez in treason against her majesty. They were detected and brought to trial; and in their case it was resolved by the judges, that their indictment ought to begin "That they intended treason contrà Dominam Reginam, omitting these words naturalem Dominam suam, and ought to conclude, contrà ligeantiæ suæ debitum," in the present instance, knowing the prisoner to be an alien; this course has been pursued. This indictment avers that he committed the offence as a false traitor against his majesty, contrary to the duty of his allegiance, which is all that the case of De Gania requires: and I have shown that the words naturalem Dominum must be omitted in the case of an alien; and it is certainly best to leave them out in all cases. I proceed to show why it is not necessary to insert an averment that the accused is a subject, and here I call upon my learned friends, to produce an authority, an opinion, a Dictum, which declares it necessary. I do not mean to say that if inserted it will certainly vitiate: I contend only that an indictment, in other respects well drawn, is sufficient without it. One of the strongest reasons in support of this opinion appears to me to be the general rule of the law, that every man must, prima facie be presumed a subject. This was stated by sir Bartholomew Shower, in Cranburne's case; and in the case of David Lindsay it was so ruled by the Court.¶ The latter is very strong; the indictment was founded on the statute of William and Mary, by which it was made high treason for any of the subjects of their majesties who went to France, to return into England without the royal licence. A motion was made after verdict in arrest of judgment, because the indictment did not aver that he was a subject when he went to France. But the Court observed, that this was not an objection which could avail, because they were bound to take him to be a natural subject unless the contrary appear, where is the necessity of averring what the Court must assume till the contrary appear? Do we, in indictments for any offence aver * Antè, vol. 13, p. 227. Antè, vol. 21, p. 495. Antè, vol. 25, p. 1158. Antè, vol. 13, p. 227. Antè, vol. 14, p. 1032, 1033. that at the time it was committed, the accused to his majesty in this case, is expressly found; was of sane mind? Assuredly we do not; and in this alone the jury have found the ofand for the same reason the Court must pre-fence itself to be high treason, and the prisoner sume him to be of sane mind, till the contrary is proved. There appears to be a strict analogy between the instances of alienage and insanity, in this particular and in other points; for insanity must be pleaded or given in evidence, and this is undoubtedly the rule with respect to alienage; for it is a fact within the knowledge of the accused, and the proof of it lies upon him. A subject is defined to be " a member of the commonwealth." It may be well doubted whether an alien can possibly be brought within this definition: certain it is, there is wide scope for argument to prove that he cannot. I contend therefore, that it is safer to omit the assertion, and to support the indictment by other averments. In this case the indictment sets forth the offence itself strictly according to precedents, both ancient and modern, and avers that it was committed by the prisoner, late of the parish of Quebec, at the same parish of Quebec, a place within the king's dominions and within the jurisdiction of the court, as a false traitor against his majesty. It further states that he wholly withdrew the allegiance which he owed to our sovereign, and that the offence was com. mitted by him traitorously against the form of the statute and against the duty of his allegiance. Surely this is enough, and particularly at this stage of the trial; for we must recollect that this is a motion after verdict, and I cannot but think, that very argument which the counsel for the prisoner have adopted proves, that the jury have even found the fact for which they contend, I mean that the prisoner was a subject of his majesty at the time of the offence committed, according to the very construction which they wish to put upon the word" subject." Their argument is this; "unless he is a subject, he cannot owe allegiance." If this be true, the converse must be equally true, that is, "If he owes allegiance, he must be a subject:" now what have the jury found? They have found that he owed allegiance, for they have expressly found"that he withdrew the allegiance which he, of right, ought to have borne towards our lord the king;" and they have also found that his offence was committed contrary to the duty of that allegiance which he owed to his majesty. They have therefore found him to be a subject; and this reasoning is certainly supported by what was said in Tucker's case, (lord Raymond, p. 1); for allegiance is there defined to be the mutual bond between the king and his subjects, by which the subjects owe duty to the king, and the king protection to his subjects. "And treason," said the judges, is the breach and violation of that duty of allegiance which the subject owes to the king." The Court will permit me to repeat that the breach and violation of that duty of allegiance, which the prisoner owed a traitor. But it is not upon this only that the case must rest, they have found more, they. have found that the prisoner is of the parish of Quebec, that he committed his treason in that parish, that he has been guilty, traitor. ously guilty, of the whole charge, and that the offence which he committed is high treason within the statute of Edward 3rd. May it please your honours; I might perhaps close the argument without farther observation; but one authority which I have cited, has struck me so forcibly, that I request to be indulged with your permission to repeat it. The jury have found the crime of which the prisoner is guilty to be high treason, and an offence which he has committed against the laws of the province, and against the duty of his allegiance. The words of my lord chief justice Holt, which I have already cited from "If it appear Cranburne's case, are these: that he has committed an offence against the laws of the kingdom and against the duty of his allegiance, which is high treason, that is enough. Mr. Pyke. May it please your honours; In reply to what has fallen from my learned friend, the attorney-general, in answer to the arguments used in support of the motion in arrest of judgment, I shall not take up much of the time of the Court, knowing that the objections which we have had the honour to offer, need only be fairly stated, and that the Court will give them that serious consideration which they may deserve. And I must still contend upon the first ground, that, from the plain and natural construction of the words of the statute 25 Edward 3rd, it cannot be considered as extending to Canada, so as to make any attempt 10 subvert the government of this country, high treason under that statute. Nor do I conceive that the Quebec act has had the effect to introduce the 25th of Edward 3rd into this country, but I humbly contend, that it was, and is, necessary to introduce it by a special act of And notwiththe provincial parliament. standing all that has fallen from the attorneygeneral, on the second ground of the motion in arrest of judgment, I am still of opinion, that it was essentially necessary that the indictment should have averred the prisoner to have been a subject; for there are two descriptions of subjects, the one natural born, and the other temporary; the prisoner at the bar certainly comes under the second class, and therefore, for the reasons which we have had the honour to state to the Court in the opening of this motion, I humbly conceive that the indictment not stating the prisoner to be a subject, must, on that account, be considered defective. The Honourable Chief Justice Osgoode.-If I understand this motion rightly, it is made upon two grounds; the first that the statute | Mansfield, in the case of Fabrigas and of treasons is a local statute, and does not Mostyn. But in Francia's case, who was obtain in this prov nce; and secondly, that an alien, he was stated in the indictment the indictment does not state the prisoner to be a subject, and evidence was allowed to to be a subject of our lord the king. With be given that he was born at Bordeaux in regard to the first objection, independently of France; and Mr. Hungerford, who was a very the principle which some intelligent writers able lawyer, seemed to be perfectly satisfied have advanced, that in conquered countries that he should be able to arrest the judgthat are civilized, although the laws respect- ment because that averment was made: ing property continue till varied by the con- and to day it is to be arrested because it queror, yet that the pleas of the crown or the was not made. In many of the old encriminal laws do ipso facto immediately attach. tries, as appears by the cases cited by Mr. It is well known that, by an act of the British Attorney-general, this averment is omitted, legislature, the criminal law of England is In modern precedents it has been inserted established in this province. The criminal upon the principle, that while a person owes law of England, as the criminal law of most allegiance, whether lasting or temporary, he countries, is general. Some statutes indeed may be called a subject; but in the positive are restricted to the realm, others to particular and absolute sense of the term it is a false counties; and there never was a doubt, but fact, and according to Mr. Justice Foster the that all the general statutes, up to the 14th safer way is to omit them. The essence of of the king, are in force in this province. an indictment for treason is this, that the The question then arises, are the clauses of crime committed is against the duty of the parthe 25th Edward 3rd, upon which this indict- ties allegiance; for, as lord Holt observes in ment is framed, penned in general terms? Cranburne's case, "if the crime be not against The first clause is," If a man do compass or the duty of his allegiance, it cannot be high imagine the death of our lord the king" treason." The prisoner is charged in the inWords cannot be more general; for, here is dictment with having acted against his alleno restriction or limitation, either of time or giance-that allegiance which he owed as beplace. The second is, " if a man be adherent ing of the city of Quebec, in this province, meṛto the king's enemies in his realm giving chant; for that is the addition by which he is them aid and comfort in the realm or else designated in the indictment. The temporary where." This clause is studiously comprehen- and local allegiance to the supreme power, due sive, and certainly takes in this province. byevery sojourner, in every state, is a principle There can, therefore, be no question whether of general law. The commorancy averred in general clauses are to be deemed local. This the indictment, is sufficient to show that he is sufficiently apparent upon general reason- owed an allegiance; he is charged with having; but added thereto, there are a number ing acted against that allegiance generally, of cases in point, together with a parliamen- without stating whether as sojourner or subtary decision on the question, whether the ject, the allegiance due being averred, the statute of treasons is or is not confined to Court is of opinion that it is not necessary to England? Cardinal Pole's case was a com- make this indictment valid, that he should be passing in Italy; Dr. Storey's case, in the charged as a subject, and that, as there is noLow Countries; Crohagan's in Portugal, and thing in either objection, the motion in arrest Ebenezer Platt's case in America. To say of judgment must be over-ruled. that a man cannot compass the king's death in America, is to say that the operations of the mind are suspended in America; and to say that America is neither in the realm nor elsewhere, is an absurdity. Two several statutes, one in the 23rd, the other in the 35th year of Henry 8th, mentions treasons committed out of the realm of England; and without the king's dominions. There is clearly, therefore, no reason to arrest judgment on the first ground. With regard to the second objection, that the indictment does not state the prisoner to be a subject of our lord the king, it may appear to come with a very bad grace, after the pains taken to prove him an alien. If it be a necessary averment to state that the prisoner is a subject, it must be necessary either as a matter of fact, or as a matter of fiction. As a matter of fact, it is contradicted by the evidence; and if it were necessary as a matter of fiction, you would not be at liberty to disprove it, for the reasons laid down by lord Clerk of the Arraigns.-David Mac Lane hold up your hand you have been indicted of felony and treason, have been arraigned and pleaded thereto Not Guilty, and for your trial have put yourself on God and the country, which country have found you guilty. What have you to say for yourself why the Court should not proceed to give judgment of death upon you according to law? Prisoner.-I have nothing more to say. Clerk of the Arraigns.-Cryer make proclamation. Oyez! Oyez! Oyez! Their honours the king's justices do strictly charge and command all manner of persons to keep silence while sentence of death is passing against the prisoner at the bar, upon pain of imprisonment. Chief Justice Osgoode.-David Mac Lane; you have been indicted for the crime of high treason, to which indictment you pleaded not guilty, and for your trial put yourself on God * Antè, vol. 20, pp. 226, et seq. and the country, by which country you have been found guilty. You have been tried by a respectable and intelligent jury, many ofwhom have heretofore served on the grand inquest. Your trial has been attended with such circumstances of fairness, openness and lenity, as do not obtain in any country upon earth, except where the laws of England prevail. More than twenty days have elapsed since you were acquainted with the particulars of the charge brought against you, and of the names of the witnesses to prove it, that you might not be surprised by a sudden accusation, and might have full time to prepare your defence. After the facts charged were fully established by the verdict, your counsel have been heard on every objection that could be brought to the regularity of the proceedings; whereas, had you been accused of the like crime, in that country whose government you would wish to impose on this province, instead of being allowed a period of twenty days, you might have been charged, convicted, and executed, in less than so many minutes, reflect, therefore whether you have not been guilty of a most unjust attempt against this government. the spirit of admonition, and that upon this principle. You seem to possess a good understanding; I wish, therefore, to fasten on your mind the persuasion of this manifest truth, which nothing but the most perverse obstinacy can resist, namely, that though your designs were most hostile against this government, yet you have experienced that fair trial you would not have met with in any other government under Heaven; in hopes, that when the mist of delusion shall have disappeared, the conviction of one truth may prepare your mind for the admission of others, and finally produce that sense of contrition and remorse, which can alone expiate your dangerously wicked crimes. Had your trai. torous project been carried into execution, who is there in this numerous audience that would not have felt the consequence among his friends and relations, or in his own person. But as it has pleased Providence to baffle your pernicious designs, I shall press this subject no farther. This government which you wished to overthrow, has, like all others provided for its security against those who seek to destroy it. In the scrutiny of offences it It appears in evidence that you are an alien is more lenient than others, but is equally to the king's government, notwithstanding severe in the punishment. That punishment which you have been treated with the same you have justly incurred, and it would be indulgence as though you had been a native highly uncharitable to beguile you with the subject. True it is, that a treaty of amity expectation that it will not be inflicted. Let subsists between his majesty's subjects, and me, therefore, most seriously exhort you to the citizens of the United States, many of employ the short time you have to live, in whom have borne public testimony to the submitting yourself with humiliation and rekindly offices received from the king's sub-pentance to the Supreme Ruler of all things, jects. It is an intercourse we wish to cherish as well with public bodies as with individuals and as it is not probable that you personally have received an injury from this colony, you have been guilty of an unprovoked attempt against this government. Having heard of some disturbances that were excited on account of the Road act, you falsely concluded that his majesty's Canadian subjects were disaffected to government, and ready to join in a rebellion, which you were willing to conduct. You might have known that it is easy to provoke murmurs on a like occasion in the best regulated states: in England similar discontents have taken place and subsided as in this country; for a short experience has convinced the people that the measure was greatly for their benefit. Putting conscience out of the question, as a prudent man, you had no grounds to go upon. No one, therefore, but a rash and unprincipled character would have engaged in so desperate an enterprise; and no one but a cruel and inhuman character would have projected such measures to carry it into execution. Consider then, whether you have not been guilty of a most atrocious and sanguinary attempt against this government. Perhaps you may think these terms savour of a spirit of reproach; far from it: in your pitiablecondition,to betray such a temper were very unworthy. No;-they are uttered in whose goodness is equal to his power, and who, though you suffer here, may admit you to his everlasting mercy hereafter. That such mercy may be your portion, is my most earnest prayer. It remains that I should discharge the painful duty of pronouncing the sentence of the law, which is, " That you, David Mac Lane, be taken to the place from whence you came, and from thence you are to be drawn to the place of excution, where you must be hanged by the neck, but not till you are dead; for, you must be cut down alive and your bowels taken out and burnt before your face; then your head must be severed from your body, which must be divided into four parts, and your head and quarters be at the king's disposal; and the Lord have mercy on your soul." The Attorney General moved, that a day should be fixed for the execution;-and the Court appointed Friday the 21st day of July instant. This important trial commenced at seven o'clock in the morning, was concluded at nine in the evening, and was attended by the most numerous audience ever assembled in Quebec. On Friday, the 21st of July, the prisoner, David Mac Lane, pursuant to his sentence, He immediately drew the cap over his face exclaiming "Oh God receive my soul! I long to be with my Jesus" and dropped his handkerchief as a signal for the executioner, who instantly turned him off.-He appeared to struggle with death but a short time. was taken from the common gaol and placed self to the military who were drawn up in a holupon a hurdle, which moved in slow solem-low square about the gallows, he added!“ you, nity towards the place of execution, attended with arms in your hands, you are not secure by the sheriff and peace officers of the dis- here, even with your arms, I am going where trict, a military guard of fifty men and a great I shall be secure without them." multitude of spectators. About a quarter after ten the hurdle drew up close to the gallows erected upon the Glacis without the garrison wall. As soon as it stopt, Maclane rose up, he was dressed in white linen grave cloaths, and wore a white cap on his head. The reverend Mr. Mountain and the reverend Mr. Sparks attended him, and with them he continued in fervent prayer for some minutes. He then informed the executioner that he was ready, and was by him directed to ascend the ladder which he immediately did.-But the executioner observing that he was too high, he descended a step or two, and then addressed the spectators in the following words, "this place gives me pleasure; I am now going where I have long wished to be, and you, who now see me, must all follow me in a short time, some of you perhaps in a few days; let this be a warning to you to prepare for your own deaths." Then addressing him The body hung for five and twenty minutes and was then cut down. A platform, with a raised block upon it, was brought near the gallows, and a fire was kindled for executing the remainder of the sentence. The head was cut off, and the executioner holding it up. to public view proclaimed it "the head of a traitor."-An incision was made below the breast and a part of the bowels taken out and burnt; the four quarters were marked with a knife, but were not divided from the body. The whole of the execution took up about two hours, and the conduct of the unhappy sufferer was in every respect composed and becoming his situation. 628. Proceedings in the High Court of Justiciary at Edinburgh against ALISON DUNCAN, NEIL REIDPATH, and ROBERT MITCHELL, on an Indictment charging them with Mobbing and Rioting in resistance of the execution of the Militia Act, 11th and 12th of October: 37 GEORGE III. A. D. 1797. the crimes of mobbing, riot, and others in manner mentioned in the criminal libel raised thereanent, bearing That whereas by the laws of this and of every other well-governed realm, mobbing and rioting, more especially with the intent and purpose of resisting and opposing the execution of a public law, and when accompanied with circumstances of great violence and outrage, are crimes of an heinous nature and severely punishable: Yet true it is and of verity, that the said David Duncan, Elizabeth or Elly Duncan, John Nicolson, Francis Wilson, Robert Mitchell, and Neil Reidpath, are all and each or one or other of them, guilty actors, or art and part of the aforesaid crime or crimes, in so far as on the twenty-ninth day of August one thousand seven hundred and ninety-seven, or on one or other of the days of that month, or of the month of July immediately preceding, or of September immediately following, David Anderson, esq. of Saint Germains, John Cadell, esq. of Cockenzie, drew Gray, esq. of Southfield, all deputy lieuMajor Andrew Wight of Ormiston, and Anhaving met in the house of John Glen, inntenants of the said county of Haddington, |