People from pleading the Benefit
of that Act, &and that as no further
was at present intended, they could
not complain of this Step as an
Hardship. He farther took Notice,
whatever might be the Motives &and
Considerations influencing the
Government to order this Proc-
dure, it did not seem material
for the Gentlemen of the Jury to
enquire into, since the Oaths they
had taken, &and the Duty they owed
their Country, were Obligations of
a higher Nature than any other.
You are therefore (continued he) to
consider what Accession those Persons,
who are nominatim1 excepted from
the late Act of Indemnity, had to
the late Rebellion, &and against whom
Bills are to be presented, together
with the Proof that Shall be adduced
in Support thereof. — Here he ob-
served the present State of our Trea-
son-Laws, as they now stand, &and
wherein they differed from our Sta-
tutes relating to Treason before the Union; 1114 (1114)
Union; that before that Period his
Majesty’s Advocate had Power to
prosecute any Person, who ap-
peared to be guilty of Treason,
upon a Precognition taken of
the Facts: At which Time several
Complaints were made, that Per-
sons were frequently harassed wtwith
Prosecutions on the Statutes of Law;
but that this was now altered by an
Act of the 7th of Queen Anne,2
whereby the Treason-Laws of Scot-
land were taken away, &and those of
England substituted in their Place;
&and that by the said Laws of England
it was necessary to present Bills
to a Grand Jury, &and a Verdict to be
returned by them before any Person
could be brought to a Trial. He
likewise spoke of several other
Parts of English Law with Re-
spect to Treason, particularly, that
every Treason behoved to be tried
in the County, where it was com-
mitted; &and that this had been so far
altered by an Act of the last Sessi-
on of Parliament,3 that all the Trea-sons1115(1115)
sons, committed in the disarmed Coun-
ties, might be tried in any County
where the Court of Justiciary sat.
He further observed, that it was un-
doubtedly a great Security to yethe Lives
&and Properties of the Subject, that no
Officer or Servant of the Crown
could bring a Prosecution against
any Person, since that Power was
now lodged in the Hands of the
Grand Jury, &and even twelve of them
behoved to concur in finding of
any Bill; &and that it was certainly
a more just &and equitable Law, to allow
such Enquiries to be made in other
Counties than where the Crime was
committed, since thereby disinterest-
ed Juries would be more easily
got, who were not influenced by
Relation or Favour, than if they
had been obliged to sit in these
Counties, where most of the excep-
ted Persons were connected &and relat-
ed. — In the next Place he con-
sidered the Nature of the Evidence,
that ought to govern &and influence
them in their Conduct, &and a Quotati-on1116(1116)
on was mentioned from Lord Chief
Justice Hales, who says, that pro-
bable Evidence is sufficient for a
Jury to return a Verdict finding
a true Bill; that other Lawyers
seemed to require somewhat fur-
ther, by maintaining, that it was
necessary that the Evidence of-
fered to them should be persua-
sive, at the same Time they ge-
nerally agreed in this Doctrine,
that a less accurate Evidence
was necessary before a Grand Ju-
ry, than what ought to be brought
before a Petty One, where any
Person was brought on Trial for
his Life, where only he could
offer his Defences &and be allowed
Council, neither of which were
allowed when the Bills of Indict-
ment were presented to them.
But at the same time he added,
that it was his own Opinion, that
there should be a reasonable Evi-
dence offered to them in Support
of each Bill, although he did not
believe, there was any Necessity in the 1117 (1117)
the present Case for entringentering into
such abstract Questions. Here he
mentioned the Law of Scotland
with Respect to the Manner of lay-
ing the Circumstances of Time in
all Indictments; that with Respect
to the Circumstances of Time it
was likewise necessary, by the Forms
of the Law of England, to charge
in the Bill the Day on which
the Treason was committed, but
that it was not necessary to
prove it; &and that it was likewise
necessary to charge the Place,
where the treasonable Fact was done,
though it was not necessary precise-
ly to prove it, providing by the Proof
it appeared to be committed in yethe
County, within which the Place
charged did lie. He farther ob-
served, from the above Act of K:King
William, that it was necessary that
two Witnesses should concur as
to the same Kind of Treason, al-
though it was not necessary that
they should agree as to the precise
Place or Time; &and therefore two Wit-nesses1118(1118)
nesses deponing against any Person,
as to treasonable Facts committed,
might be conjoined, though they
differed in the Circumstances of
Time &and Place: That a Proof of
Treason, charged to be committed
in Lochabar, might be supported
by a Proof of Treason committed
in any Part of Great Britain,
seeing it was all one Treason,
though carried on in different
Counties. — He concluded with
observing, that it was to be hoped,
that they would have great Re-
gard to the Oath they had taken
to their King &and Country, not to
give any Ground (to the Reproach
of the Country) for saying, that
one Part of the Country had rose
in Rebellion, &and that another
Part of it had perjured them-
selves in order to acquit them.
And, wishing God might assist
them to finish the Work that
they were now to undertake,
he ended. _ _ _ _ _ _ _ _