words plainly meant all the people :-he meant, that if the Prince Regent refused their just petitions-if he did not listen to the general cries of his people, then he had forfeited their allegiance, that is, the allegiance of the whole nation, so petitioning, and so repulsed and rejected. It would be too absurd to imagine, that if all the rest of the people in the kingdom were to be true to their allegiance, they, the Kilmarnock petitioners alone, were to rise into rebellion. The words do not bear such an interpretation. The whole people are spoken of.

I do not hesitate to say, that the expression is indecorous, and that it is improper to raise up the idea of resistance on such an occasion. The terms employed were indecent, and perhaps punishable, as a breach of police; but they were not seditious. What was said was, perhaps, harsh and absurd, but it was consistent with the law of the land. For what is the proposition?-That we are entitled to present our petitions to our august prince, and that he is bound to listen to them. I do not know whether the petitioners anticipated the general voice of the people to support their wishes; but in speaking of the Prince Regent, they only say, that his gracious nature will incline his ear to listen to the cries of his people. But, if the Prince Regent is bound by the laws of the country to listen to the cries of his people, under what sanction is he bound? There is no doubt, if the people were unanimous in petitioning for any object, government could not be justified in refusing the petitions. The doctrine of the petitioners is consistent, therefore, with the law and constitution of the kingdom. In one sense, the sovereign is but the chief servant of the people, though he is entitled to all respect, to all deference, and to all reverence. The law and the constitution have pronounced that resistance is lawful for the people in certain circumstances; though, undoubtedly, a lamentable struggle might ensue, if such resistance should become necessary.

It is with the utmost pain and reluctance that I enter at all upon such a discussionhaving been accustomed to regard this constitutional doctrine with reverence approaching to awe, and being convinced, that in common times it is a doctrine which should be but seldom the subject even of contemplation. But "Fools rush in where angels fear to tread." -And though some apology, perhaps, may be found for the folly of the petitioners in the extremity of their distress, I am far from denying that it is such as to disgust and offend all persons of good education. The doctrine of resistance belongs to the more sacred and private recesses of the constitution, which are profaned by exposure to the eyes and to the handling of the vulgar. Yet our safety undoubtedly might come to rest on the principle of resistance; and though violence is done to all well-constituted minds, by any light or needless allusion to such a topic, yet when my clients are in danger of punishment, it is my duty to state

that proposition in their defence, and I am sure their lordships will agree in the fitness and propriety of my doing so.-I might cite to you upon this occasion all the authorities that exist upon subjects of this description, and confirm the proposition I have announced by passages from Locke, Hume, Blackstone and Burke, and every writer, indeed, who, in a spirit of unquestioned loyalty, has at all entered into the philosophy of our freedom. But omitting those more general and notorious authorities, I shall content myself with citing to you that of one, not inferior in point of talents to any I have mentioned, and on whom also death has lately set his seal. The person to whom I allude, delivered his sentiments in a scene and situation in which it was his duty to abstain from making such a statement, if his own judgment and good sense had not assured him he was justified in what he said. I allude to a speech in the printed trial of Fyshe Palmer, delivered by lord Meadowbank, who was then at the bar, and acted as counsel for the crown on that occasion. In commenting on the conduct of the panel, that eminent person took occasion to say, "The only plea that can be set up is the plea of the sword-none else. The time may come when such a spirit may be properly shown, and then I hope there will be spirit and virtue in the country to assert its rights.-The country lately shewed its power to assert its right, not against the executive power, not against the representatives of the people, but against those who were organizing a different representation, those little self-elected parliaments, those selfconstituted societies from which a convention was to have been formed. Then there was reason for alarm to the good citizens of the country, and the good citizens came forward, and signified their resolution to abide by the constitution with their lives and fortunes, and to share its fate: and I hope, if our religion, or our civil liberty, is again attacked; IF A KING or a mob shall dare to persecute us for our freedom, that there will be spirit in this country to assert its right, and maintain our constitution. Such things may be-I can scarcely venture to figure them; yet, kings are but men, and we ought to he thankful for such a king as we have; but if a king were to come who was to send the bishops to the Tower, because they refused to read a prayer or a liturgy disowning the Godhead of Christ,-were the time to come, when men should be punished for refusing to pay taxes, imposed by a king without the consent of parliament-were the time to come, when men were to be tried without form of law, without judges, or juries, but by the arbitrary power of the crown, by their minions and delegates-then would be the time for every man of spirit in the country to assert their rights." I read that passage to you, in

*The father of the Lord Advocate who conducted this prosecution.

+ Fyshe Palmer's case 2 How. Mod. St. Tr.

288.

order to point out from recent and domestic authority, how clearly the doctrine of resistance is recognised among all who have studied our constitution, and how boldly it is held forth, even by the official advisers of the crown, as the ultimate resource which the constitution affords when an extreme case shall arrive. Now, no more extreme case can be supposed, than that of the prince setting himself in opposition to the voice of his whole people, and that is the only sense which can be put on the passage here in question. Resistance is a lamentable and a dreadful remedy; but it may be a necessary one: and though we ought to take it for granted that the necessity will never occur, we cannot allow its existence or its efficacy to be questioned. It is a true, but awful maxim, and not fit to be canvassed irreverently in conversation, public speeches, or publications. But in defence of my client, I say that it is a true maxim, and that there is neither treason nor sedition in stating it, as is done in this pamphlet.

I shall not fatigue you by going over all the passages which are cited in the indictment, but shall only trouble you with one or two, in order to settle the sense and construction, and determine what was truly and really the scope of the whole discussion on this occasion. You were told that the question lies here (and I agree that it does), Whether, upon the whole, under a pretence of petitioning, it appears there was a purpose in the minds of these people not to obtain redress, but to excite sedition, tumult and confusion from one end of the kingdom to the other. That is the question truly and substantially; and you are not to dwell on detached passages, without taking into view all others of a less ambiguous description:-you are to judge of the import of the whole.

One of the citations in the Indictment is, "That the House of Commons is not really what it is called; it is not a House of Commons. At present we have no representatives." Now this seems to me just such a way of stating the thing, as when a person says, This is no bouse-this is no dinner-this is no speech, meaning it is not what it ought to be. The mode of expressing the opinion is somewhat strong, but that is its meaning. It is said in the pamphlet, "And a House of Commons, but the latter is corrupted; it is decayed and worn out; it is not really what it is called; it is not a House of Commons." It is then explained, "The House of Commons in its original composition consisted only of Commons chosen annually by the universal suffrage of the people." There is the difference between what it is and what the person speaking conceives it ought to be. When we wish to say a thing is not what it ought to be, we sometimes express our meaning by saying it is not at all; and when a person means to say that the representation of the people is not what it ought to be, he may naturally enough express his meaning by saying that there is no

representation at all. The statement of this very opinion has often been given in this way, and has never been challenged. But it is not on my authority that I wish you to take this explanation. It is given in express terms in the subsequent parts of the very speech from which the expression is quoted.-The orator, after some further dissertation, goes on to say, "Will any man, then, possessed of common sense, say that this is a House of Commons agreeable to our Constitution, or that it is A FAIR representation of the people?" All this, you will observe, is in the same speech, and it must, by every rule of construction, be taken along with what went before to explain and modify those more general expressions.-The same explanation occurs in five other passages of the pamphlet-and leave no room whatever to doubt, that what the orators meant was merely that the House of Commons was not what they wanted, and was not a fair and equal representation of the people. Is it sedition to say so? I for one think the present representation a very beneficial one; and though it might be made more agreeable to theory, I should not expect great benefit from some of the changes which have been proposed. But can it be called a fair and equal representation of the people in any sense of the word? There is hardly any person in Kilmarnock who possesses a vote.-I do not say there is any disadvantage attending the present representation, but other persons may think differently; and sure I am there are plausible grounds for any one saying, he would like to see the representation reduced nearer to the theory of the Constitution. Upon system and principle the representation ought to be altered in some particulars, though, upon the whole, I do not expect the mighty effects from any alteration which some people do. The passage in question is a short, rhetorical, pithy, forcible way of expressing the speaker's opinion; but he obviously means that the representation is unequal, that it is not sufficient, and not agreeable to the theory of the Constitution That a man should be prosecuted for sedition for appealing upon such a point to the authority of Parliament was never heard of before. But it has been the fate of the panels to be accused of arraigning the Constitution, while contending, as they thought, for its restoration to purity and vigour.

I now turn to the definition of sedition in our law books. To commit sedition, you must, in direct terms, or by unequivocal insinuations, excite discontent and disturbance against the present state and constituted authorities of the country. Mr. Hume, who is not supposed to have looked upon sedition with any extraordinary lenity, expresses himself thus: "It reaches all those practices, whether by deed, word, or writing, or of whatsoever kind, which are suited and intended to disturb the tranquillity of the State; -for the purpose of producing public trouble or commotion, and moving his Ma

jesty's subjects to the dislike, resistance or subversion of the established Government and laws, or settled frame and order of things."

Then see by what instances and examples he illustrates and explains his definition.-In every one, you will observe, he makes it an indispensable qualification that there should be some direct exhortation to the people to usurp an illegal power.

Mr. Hume is looked upon as a great advocate for the crown in his observations on sedition. The times in which he wrote his account of the law on this subject are supposed to have given a bias to his opinions, of which he was probably insensible. There is a prevailing opinion at least to this effect, in the other end of the island especially,-unfounded in all probability, but certainly very generally diffused. This, I say, is a common opinion concerning his treatise; and certainly his argument against sedition is carried as far as it can go. His book was published recently after the circumstances of the country required a nore than usually vigorous application of the sedition laws; and this accident may have warped his opinion on the subject. Yet, strictly and vigorously as it may be thought he lays down the law, it will be found that even his grasping and comprehensive description does not include the case of the panels, but that every one of his examples implies that there has been a direct excitement of the people, to take to themselves some part of that power which belongs to other hands. But in the present case there are no words which shew an idea to have been entertained of usurping such a power, I say none of the passages can be founded upon as indicating such a purpose. There are words, indeed, which expressly contradict ths idea of any such purpose. In the speech of Mr. Johnstone, page 14 of the pamphlet, he says, after enumerating our grievances in glowing terms, "But what are we to do, my friends; what does the constitution authorise us to do?" Now this is coming to the point with sufficient directness; but let us see how it is settled, The orator answers himself thus, "It gives us a right to lay complaints before the King and both Houses of Parliament, and a right to be heard and relieved when we suffer. Let us this day embrace the privileges of our glorious Constitution; let us lay our petitions before them, and assert our rights as men and as Britons." Is there any thing equivalent to `sedition here.

I might put the matter also to the test of what the petitioners did. Did they organise any societies to correspond with? Did they affiliate themselves as the United Irishmen did? Did they declare their committees permanent, or provide in any way for their future proceedings? In short what did they do? They did just what they professed to do, they petitioned Parliament, and having sent off their petitions, went home quietly to their families. No meeting has ever been heard of

at Kilmarnock since the evacuation was made in Dean Park; and if that is the way in which the people are to alleviate their distresses, it is at least as innocent as running up scores at the gin-shop. But we must go back to our orator. He proceeds, "Let us, therefore, use every constitutional means to recover our lost rights, rights which our ancestors enjoyed and exercised; let us be firm and unanimous in our resolves, that we will not be deprived of our privileges any longer, that we claim then as our birthright, and by our quiet and constitutional conduct shew one enemies that we hate anarchy, confusion, and usurpation, and that we want nothing but what is for the general good of the country." But these, it has been said, are pretences, put on to disguise the real wickedness of their designs. I think you are in no danger, Gentlemen, of believing that. Whatever faults these people may have committed, I am confident you will not find them guilty of hypocrisy. My own conviction is, that they have spoken more violently than they intended; but I am sure you will give them credit at least for all the moderation they profess.

There is a great deal more to be said on the other parts of this publication. Mr. Craig makes an eloquent harangue. There is a great deal of poetry in his speech. Being then, my brethren, impelled by necessity, let us approach, displaying reason and resolutions like men who know their duty and their object. Yea, with these and similar principles may we undauntedly go forward, and like legitimate sons come to the years of majority, let us in the name of law and justice demand the inestimable and dearly purchased bequest of our worthy progenitors, that we may enjoy it ourselves, and transmit it to a lauding posterity. And so act, awaiting the fiat of Him who regardeth not the persons of men, but attendeth to the cries of the poor, and pleadeth the cause of the distressed; always taking for our encouragement the success of the importunate Widow recorded for our instruction, who by her incessant demands prevailed with the unjust judge, that although, without any regard to his high obligations, yet was not totally destitute of that principle which makes all human kind quake, when reminded of neglected duty. May we be actuated by the same courage to go and do likewise." Here, again, you see how distinctly their views were limited to the peaceful iteration of petitions.

The purpose of the Resolutions, too, has been entirely misunderstood. In the 5th it, is said, "That the debt, now amounting to nearly 1,000 millions, has been contracted in the prosecution of unjust and unnecessary wars, by a corrupt administration, uniformly supported by a House of Commons, which cannot be said, with any justice, to be a fair and equal representation of the country, but which for the most part is composed of men put in by a borough faction, who have usurped the rights of the people; and who by undue means have

to the constitution." Is it said that this is hardly a cover for professed rebellion? In answer, here is another passage, "The unanimity of our sentiments and exertions, agreeable to the constitution, will once more dispel the cloud which eclipses the resplendent and animating rays of liberty, and will again make her shine forth in this once happy country with unimpeded effulgence." The last speech in the pamphlet ends thus: "Permit me now to conclude in the inimitable language of our celebrated bard, and friend of liberty, Robert Burns-May tyranny in the ruler, and licentiousness in the people, find in each of us here an inexorable foe."

There is another passage where allusion is made to reverend hirelings, upon which the lord advocate bestowed his eloquence as needlessly, and, I am sure, with as little effect as on the passage about the army. In that quarter of the country, a tendency to fanaticism rather than to irreligion might be expected; as it was there that presbyterianism first struck root and in this very pamphlet you will find passages similar to those employed by the Covenanters in the Tales of my Landlord. "It is there you will see how Egypt flourished under the wise administration of Joseph; and what the heard-hearted and inquisitorial Pharaoh did for the sons of the Nile; it is there you will see what Solomon did for Israel;-with what Jeroboam, Nebat's wicked son, and others, brought upon the (now) wandering sons of Jacob. It is there you will see what Nebuchadnezzar, Evil-Merodach, and Belshazzar, did for the now extinct Babylonians;-how Persia rose under Cyrus, and sunk under the bloody Cambyses," &c. &c. I am confident, indeed, that you cannot look into any part of the publication, without seeing great reverence for scripture,-a calm, temperate reliance on the assistance of Providence in all good acts, a reliance to be founded on good moral conduct and prayer. The term, "reverend hirelings," employed by these rude orators, might be considered perhaps as not undeserved by certain clergymen who leave their proper duty for making proselytes in politics; and persons who do not agree with them might say, with any purpose but an intention to bring discredit on religion, that they had been hirelings in certain parts of their conduct. Nothing is more innocent. The attack might perhaps have been made in a more decorous manner, but surely there is no pretence for saying here, that there is any design to excite a spirit of irreligion.

I have now gone through the publication; and I leave it to you to determine on its nature, only reminding you that it is a fundamental rule of law, that a seditious intention is necessary to constitute sedition. You will therefore consider, whether the object of these people was merely to petition parliament, or whether, under the false and assumed pretext of petitioning, their object was to excite sedition among the people, and to spread mischief VOL. XXXIII.

and disturbance in the country. In judging of this you will remember what you heard in evidence as to Mr. Baird, of whom you were told that he would be the last man to join in any treasonable or seditious enterprises, and that he was accustomed at all times to check the folly and infatuation of his neighbours.

I have already detained you, I am afraid, unreasonably long, but I cannot leave the subject without taking some notice of the precedents respecting trials and convictions for sedition which have taken place in this Court, They are all of very recent date, having occurred within the memory of most of us; I believe there was no trial for sedition earlier than the year 1792. There are, indeed, some ancient cases thinly scattered in the records of the Court, but in all these the crime was accompanied with other offences, by which the sedition was aggravated. There is no case of mere sedition, earlier than the date I have mentioned. That date must strike you at once as affecting the character of all those precedents. For it is never to be forgotten, that they, one and all, took place at a time, when the minds of Juries, and of Courts, and indeed of all persons in the country, were in a state of unprecedented alarm for the safety of the constitution; at a time when acts and expressions, which undoubtedly would not have been taken cognizance of, in happier and more serene seasons, were considered as of the most dangerous tendency;-at a time when this country had recently engaged in an alarming war with a powerful enemy, a war, not arising from disputes about territory or points of national honour, but which, proceeding from enthusiasm and madness on the one hand, and undefined fear and resentment on the other, arrayed every individual in both countries in personal hostility against every other :-a war, indeed, proclaimed against all established governments, by a country whose whole interior exhibited a phasis of confusion and crime, and breathed forth a pestilential air, which threatened to spread the contamination through all the neighbouring regions. We fought not, as in former wars, with men formidable only by their numbers, their skill, or their courage, but with men whom we imagined to be armed with a deadly poison, and zealous to spread contagion wherever they went. In these times, not only was there a raging war with that nation, which was loudly threatening an invasion of our shores,-but it is impossible to deny that there was an established centre of rebellion at home, looking up to France as the great redresser of wrongs, asking its assistance to rear up every where, the cottage on the ruins of the palace, and to carry into execution the most visionary and absurd plans for the regeneration of society. Communications of a most dangerous nature were passing between the two countries, and the crisis seemed as imminent as any the world ever saw. Such was the distressing condition of this country; that it was impossible to remit I