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for an instant, the most watchful police over the conduct of the disaffected. And what was actually their conduct in that season of general alarm f Why, they were found in innumerable multitudes holding meetings throughout the whole land,-not going out one day under a feeling of distress to petition the legislature, but forming themselves into permanent and affiliated societies, corresponding with one another throughout the whole kingdom, and with societies abroad, and smitten to such a degree with an ambition to imitate everything in France, as to adopt French names and forms in their associations. In short, an organised system of disaffection was formed, calculated to strengthen the hands of the enemy, and to unite all the domestic desperadoes that could be mustered againstour own established government. Such was the condition of the country when the trials for sedition were first brought on. In the course of ten months, societies had been established, not only in every considerable town in Great Britain, but in every little village, which, as branches of the general society, appointed delegates to it. I think I am not exaggerating the condition of the country at that time, with a view to suggest, nor do I give this as an apology for some of the proceedings which then took place; but I state it as it really was, that you may know the true character of those proceedings. The first trial was that of Mr. Muir.” It is with pain I recollect that case. With all due respect to the Court and the jury that tried it, I cannot think it a precedent to be commended. I cannot but consider it as an occurrence to be lamented—since unfortunately it cannot be forgotten. Yet, in that case there were many circumstances of aggravation, of which there is no shadow to be found here. Mr. Muir was a member of the society of the Friends of the People in Kirkintilloch and in Glasgow. He had gone to France, where he remained till after the war was declared. He came back to Ireland, and assisted at several meetings of the United Irishmen, and then returned to this country, when he was arrested and brought to trial. The charges against him were relevant. He was accused of having excited the people to disaffection to the king and the established government: he was accused of having industriously circulated the work entitled the Rights of Man, and other publications of a pernicious and seditious description. I am old enough to have attended the trial; I was not then at the bar, but I perfectly remember the leading features of the case. I think the evidence was scanty; but still the charge was relevant; and if the proof had been satisfactory he was guilty of sedition, and therefore liable to punishment. At that time there was a combination which seemed pregnant with danger to all existing establishments, a combination formed by societies all over the country, who appointed deputies to a
general meeting. The circulation of such works as Paine's Rights of Man was at that period likely to produce much evil. I believe, however, that feelings of compassion for Mr. Muir were general. I hope they are perfectly consistent with utter detestation of sedition. I believe sentiments of regret for the necessity which led to his prosecution and conviction were universal; and I say, with all due submission to the law and the verdict of the jury, that very many loyal subjects thought there was room for a verdict of acquittal—that the bulk of the nation regarded the sentence as unnecessarily severe. The next case was that of Fyshe Palmer.” He was also connected with the Friends of Freedom, and had circulated a political handbill in Dundee and in Edinburgh addressed to the lowest people. Hundreds and hundreds of these, addressed to all and sundry, had been by him committed to the winds of heaven; and surely to sow such doctrines broadcast in this reckless way, without pretence of any special end, was criminal and punishable. The handbill contained much inflammatory matter, and was proved to have been circulated by him. It was addressed to all and sundry, and at a time when the minds of the people were in a dangerous state of irritation. No direct remedy was proposed for any of the evils complained of, and the only object in view seemed to be a dangerous usurpation of power. I say there was real sedition in that case, and that it had no resemblance to the present, where there was merely one meeting, and one set of speeches, for the special object of preparing a petition to parliament—with the preparation of which the whole business actually closed. The next and the only other cases were those of the members of the British Convention, Skirving,t Margarot,t Gerrald,; and others; and certainly the existence of that extraordimary association gave a peculiar character to the whole of these cases. That formidable body, you may remember, was composed of a set of persons acting as delegates from the remotest parts of Great Britain, and who had no lawful business in this place, and no other visible purpose than to excite disaffection— who had no such thing in view as petitioning the legislature, but who wished to organise a power independent of it, unknown to the constitution, and incompatible with the existence of its great institutions. They had private meetings, and committees of emergency, some of which were only to act in the event of an invasion by a hostile force. Even taking the statement which was made by those persons in their own defence, and looking to the situation of the times abroad and at home, it is impossible to doubt that it was necessary to put down the Convention, and to inflict pu
mishment on such as Skirving. I need go no further into details, but shall merely mention that there was real, actual, and palpable sedition in that case. My purpose, in alluding to them, is to contrast them with the present case; for even in those times, and under all the deplorable circumstances which I have mentioned, this case would have been viewed very differently from the cases then tried. The trial of Robertson and Berry" took place at a time far more critical, than the present. They were tried for printing and publishing a book entitled The Political Progress of Scotland, which, as to hurtful tendency, went far beyond the pamphlet now in question. Such and such taxes were said to have been illegally imposed, and the constitution held out as a mere conspiracy of the rich against the poor; yet the punishment inflicted was three months’ imprisonment to one of them, and six months to the other. There were worse cases in 1793. In one, I mean that of Morton and Anderson,t it was proved that persons who were members of the society of the Friends of the People had gone into the castle—insisted that several of the soldiers should join the society—and given as a toast, George the third and last, and damnation to all crowned heads; yet, upon a clear verdict of conviction, nine months' imprisonment, only, was inflicted. Two cases occurred in 1802. In one of them, under very gross circumstances, for the man was a soldier, and had said he was sorry the king was not shot, and that he could see his heart's blood on his bayonet, the punishment inflicted was one month's imprisonment, and banishment from Scotland for two years. The other was the case of one Jeffrey (I am sorry that should have been the name), who, for wishing destruction to king, queen, and royal family, suffered three months' imprisonment. * I have quoted these cases to show, that even in times when great rigour was necessary, cases much worse ... than the present were leniently viewed; and I say, considering that we stand now in very different times, and that the people at Kilmarnock had confessedly no intention of holding conventions composed of delegates from various quarters, or of propagating sedition in any way, but were hungry artisans, who only met on one occasion to petition for something, they knew not what, which they thought would afford them relief, and never harboured any purpose of exciting or rising in rebellion, but continued to prosecute their views by constitutional means; can you conceive, that if the more serious cases which I have been considering received such slight notice, the present case would, even-then, have been thought worthy of any punishment at all, or that any thing further should now be done, than sending the panels home a little admonished, and heartily frightened, to be more cautious on any future occasion?
In urging this to you, I think I may refer to an authority which cannot be either despised or avoided—I mean the authority of the whole kingdom, of the whole law, of the whole majesty and power of the king, ministers, judges, and legislature of England—of that country which has had the longest experience of freedom, and has learned most thoroughly by that happy ... how little real danger there is in the discontents, or even the occasional violence of a free people. There, it would appear, they are not so easily alarmed —not so easily frightened at words, or so apt to suppose that the constitution can be brought into hazard by a few intemperate expressions. I quote, therefore, the example of England as it stands at this present moment. Will .# one say, that what passed at Kilmarnock will bear any comparison, in point of indecency and indecorum, to what is notoriously passing in England every hour, and under the immediate observation of the judges and of parliament. The orations of Hunt—the publications of Cobbett and others—the meetings in Spafields and Palace-yard, are all, up to this hour, unchecked and unpunished—and are met only by ridicule and precaution. In the Royal Foxchange, at the doors of the houses of parliament, at the gates of the palace, publications are openly sold—not 400 copies of dull speeches, but hundreds of thousands of daily and weekly effusions, containing, every one of them, matter far worse than what is found in this publication. I am sure no one can look into them, without being satisfied that they contain strong excitements to discontent, and that their authors are continually working upon the feelings of the country; yet they are still holding forth their doctrines without danger of interference.
See, then, what is the course, that all the wisdom in council, and policy of government, in that land of freedom have held What is the course they have pursued with regard to that portion of the people with whom originated any disorder that exists in the country, and the people to whom indeed the disorders are still confined 2 Notwithstanding the situation of England for the last six months, this is the first and the only trial which the present disturbed state of the country has ... Really, I should not have expected to find the first trial in this country. They that are whole need not a physician. There has been breaking of frames in many counties in England for eighteen months; and yet his majesty's government have a merciful reluctance, and are slow to call the people to account even for those great excesses while there is any reason to think that they have been produced chiefly by their misery. And with regard to the political commotions in the metropolis, they know that a check to the spirit of freedom ought not to be given without necessity;-that the present tumults have not arisen so much from wickedness of heart, as from the pressure of misery;-and with a paternal solicitude, they look watchfully and compassionately upon the people as if they were in the delirium of a fever;-and they spare them as deluded and mistaken only for a season. That is the tone and temper in which the equal justice of England is dealt, and sure I am it is admirable, when compared with that which would lay every newspaper open to prosecution, and stifle the voice of freedon. Nothing but extreme necessity and immediate danger can justify the rearing up state prosecutions. Ac: cording to the example of England, we should be slow to punish the people. In England, much more has taken place to justify prosecutions than has yet occurred in Scotland. Looking at home where no riots, and no rebellion exist, andwhere a great mass of misery has been more quietly"and more soberly borne than in the sister kingdom, we should not be rash or hasty to stretch out the hand of vengeance against those whose case calls rather for compassion than punishment. Believe me, gentlemen, it will be no honour, and no glory to us, to set the example of severity on such an occasion; nor will it redound in any way to the credit of our law or our juries, that we were more sharp-sighted and jealous than our neighbours in weighing the rash words of our fellow citizens, at a time when they were suffering the extremity of distress. At such a season, expressions will be used which it is impossible to justify; and offences will be committed, which will again disappear in seasons of prosperity. A vigilant police, in such a case, is all that is wanted. Absurd and improper expressions at meetings for petitioning parliament hardly deserve notice; and a facility of obtaining convictions for government on trials for such offences is universally recognised as a mark of public servility and degradation. It is always most easy for the worst governments to obtain such convictions,—and from the basest people. Affection to the constitution is planted substantially in the hearts of the subjects of Great Britain; and it is only those governments which are doubtful of their own popularity, that are given to torture and catch at words, and to aggravate slips of temper or of tongues into the crimes of sedition and treason. If, on account of some rash or careless expression at public meetings, people are to be punished as guilty of sedition, there is an end to all freedom in examining the measures of government. The public expectation is alive to the result of the first of these trials; and I say it will be no honour, and no glory to you, in such a case, to set the first example of finding a verdict which would subject people to punishment in the circumstances of these panels. Even if you think that the crime is doubtful, I trust you will not be disposed k lend yourselves to the over-zeal of his maiesty's professional advisers in this part of the kingdom. I say, I trust you will not shew a disposition to follow, where the keen and jealous eyes of persons in authority may spy out matters of offence; and that Scotsmen will not be forward to construe into guilt those excesses of speech into which they know that the fervid the result of the meeting, and 400 copies only of these foolish speeches were printed. No steps were taken to promote disorder, but the most entire tranquillity then and afterwards prevailed. When I think of these things, I can have no doubt at all of the issue of this trial. You cannot but perceive that the panels have not been proved guilty of sedition; for they have not been proved to have said or done any thing wickedly and feloniously, or for the purpose of exciting tumult and disorder in the country. Their general conduct and character render such an imputation in the highest degree improbable; and the particular facts which have been proved are so far from supporting it, that, when taken all together, they are obviously inconsistent with its truth.
genius of their countrymen is so apt to hurry them,--especially when they find that far worse excesses are pardoned in England to the o: matic English, in whom they have far less apology. I have exhausted you and myelf-but I have one word more to say. This is a case above all other cases fit for the decision of a jury, —a case in which you can expect but little assistance from the Court, and in which, I will venture to say, you ought to receive no impression from that quarter, but judge and determine for yourselves. The great use of a jury is, not to determine questions of evidence, and to weigh opposite probabilities in a complicated roof. Its high and its main use is, to enter into the feelings of the party accused, and
instead of entertaining the stern notions of
fixed and inflexible duty which must adhere to the minds of judges who administer inflexible law, to be moved by the particular circumstances of every particular case—to be touched with a nearer sense of human infirmities, and to temper and soften the law itself in its application to individuals. It is on this account alone, I believe, that in foreign lands the privilege of jury-trial as existing in this country is regarded as so valuable. And certainly its value has always been held chiefly apparent in trials
for alleged political offences, with regard to
which it is the presumption of the law itself, that judges might be apt to identify themselves
with the crown, as they belong to the aristocra
tical part of society, and to those greatestablishments which appear to be peculiarly threatened when sedition and public disturbance are excited. Whether there is any reason for this distrust is not now the question; and in this Court I am perfectly assured that we have no reason whatever, to doubt the impartiality of the Bench. But it is not to them that the coun
Lord Justice Clerk.-Gentlemen of the Jury; Although you have heard from the learned Counsel who has just now addressed you, with infinite ability, on the part of one of the panels, that this is a case more fitted for the particular consideration and final decision of a Jury than of the Court, and that here the Court has less concern, and less to do, than in any other species of trial; I am much afraid that, in the view which I entertain of the duty incumbent on me on this occasion, I shall be under the indispensable necessity of still detaining you for some portion of time, notwithstanding the fatiguing duty you have had to perform. In consequence of the alteration of the law relative to proceedings in this Court, it is no longer necessary to take down the evidence in writing,” but it is still the duty of the presiding Judge to sum up that evidence to the Jury who are to decide upon it; and notwithstanding what the learned gentleman said, (and I am not disposed to find fault with his remark), I shall state for your consideration, the nature of the charge and the evidence exhibited against the prisoners at the bar. But even if I were not enjoined by the positive authority of statute to do so, I should not have hesitated, in such a case as the present, to state to you my view of the evidence and of the law applicable to it. It is your province, indeed, to judge of the whole of the case; but sitting here as a guardian of the rights and privileges of the people, and bound as I am to administer the law according to the best of my judgment, I have to state to ou, clearly and distinctly, my view of the aw of this case, and then to leave it to you to do your duty, as I shall now endeavour to do mine. The Indictment exhibited against the prisoners at the bar, contains in the major proposition, a general charge of sedition, and in the minor you have the narrative of the fact,
• vide stat as Geo.III. c. 45, made perpetual by stat. 27 Geo.III. c. 18.
in reference to which the public prosecutor subsumes, that they are both, or one or other of them, guilty of the crime of sedition, actors or actor, or art and part. You will have observed, that the evidence which has been laid before you is of a different nature as it affects the different prisoners. One of them is charged with having delivered, at a meeting held in the neighbourhood of the town of Kilmarnock, a speech, which the public prosecutor states to have been of a seditious nature, containing a number of inflammatory remarks and asser. tions, calculated to degrade and bring into contempt the Government and Legislature, and to withdraw therefrom the confidence and affections of the people, and fill the realm with trouble and dissention; the manuscript of which speech he is charged with having afterwards delivered to a printer, for the pur. pose of its being printed. And with regard to the other prisoner, it is stated, that he preared for the press an account of the proceedings at the meeting, which account contains the speech above referred to, and others also alleged to be of a seditious and inflammatory nature, and that he assisted afterwards in its circulation, by exposing and actually selling it in his own shop. It will be necessary for you first to consider what is the evidence of the facts as it applies to both and each of these prisoners. After calling your attention to the facts, I shall make some observations on the law of the case; and I shall then desire you, upon these facts and that law, to consider whether there is ground for the conclusion of the public proSecutor. It may save you trouble, to state to you at the beginning the definition of the crime of sedition, as given to us by an authority, which is one of the most respectable with regard to the law, that can exist in any country whatever. I do not know that there is any foundation, in point of fact, for the supposition which was mentioned, that the author I allude to had ever been suspected of having any particular bias in giving a view of this department of the law. I never before heard that such a notion existed in the minds of the people. But sure I am, if they who read his book look to the authorities and decisions to which he refers, they will be most decidedly of opinion, that he has expounded the law in the most clear, able, and satisfactory manner. Mr. Hume, the author to whom I allude, gives this general description of the crime of sedition": “I had formerly, in drawing the line between sedition and leasing-making, a proper occasion to explain the general notion of this offence, and I shall not now attempt any further to describe it (being of so various and comprehensive a nature), than by saying that 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 Majesty's subjects to the dislike, resistance, or subversion of the established government and laws, or settled frame and order of things. as “Under this description would fall a work (such as it has been reserved for the wickedness of the present age to produce), which should teach that all monarchy and hereditary rank, or all clerical dignities and, establishments of religion, are an abuse and usurpation, contrary to reason and justice, and unfit to be any longer suffered or continued. Or, though the piece should not set out upon so broad a principle as this, if it argue (in common with the many compositions which have lately been pressed upon the world) that the power of the king is overgrown, and ought, at any hazard, to be retrenched; or that the Commons are a mere nominal and pretended representative of the people, whose laws are entitled to no manner of regard; or that the whole state is full of corruption, and that the people ought to take the office of reforming it upon themselves. All exhortations of this kind, whether any commotion follow on them or not (for if any do follow, then it will | depend on the degree, fashion, and immediate occasion of that disturbance. whether it is not treason in those who partake of it), are undoubted acts of sedition, being calculated and employed for the direct purpose of loosening the hold which the Government has of the opinions and affections of the people, and thus preparing them for acts of resistance or aggression.” . Several of the instances which he gives of this crime were already read to you, and I need not repeat them. But I refer to another passage further on, in which the author confirms and illustrates his opinion. “The reason in all these cases is the same. The crime of sedition, therefore, lies in the stirring of such humours as naturally tend to change and commotion in the state. So near, indeed, is the alliance between sedition and treason, that if, instead of sowing the seeds of a hostile disposition to the Government, or preparing such materials as in time may kindle into a flame, the offender shall seek the same object more immediately, by a direct and definite exhortation to the people to rise at that particular season and conjuncture, as advantageous for gaining their ends; this measure in like manner, as a consultation to levy war, seems to be nothing less than an act for compassing the death of the king, being a decided and material step towards the doing of that which cannot be done without the plain danger of the Sovereign's life.” : Again, in speaking of a distinction which has to-day been glanced at, between verbal and real sedition, Mr. Hume expresses himself in these wordsł: “If all that can be said of the
composition is, generally, that it is of an inflammatory kind; such as by the principles it inculcates, and the obloquy it throws out on the management of public affairs, tends to the infusion of jealousy and discontent among the multitude; but without proceeding to any proposal of a plan, or set of active operations, as grounded upon these principles, and fit to be followed in the existing state of things; this may with propriety be referred to the head of verbal sedition. It was for a composition of this character that Robertson and Berry" were convicted, as has been mentioned;
and William Stewartt was outlawed upon a
charge of the like nature, on the 11th March, 1793.” So that you see it most distinctly stated, that words, if of an inflammatory na
ture, though not followed by active operations, | will amount to verbal sedition.
I shall content myself with reading to you one
| other passage, without offering a word of my
own upon the subject. This passage refers to the distinction between the crime of sedition and that of leasing-making, which is still recognized in our law. “But sedition is a crime of a far wider and more various description, as well as of a deeper character, which may equally be committed in relation to any of the other powers, orders, or parts of the public constitution of the land, or to any class or division of the society of its inhabitants, and without the use of special calumnies or slanders against the king, or any other individual; as by the forming of combinations, the taking of resolutions, the circulation of doctrines and opinions, or, in general, the pursuit of any course of measures and actions, such as directly tends to resistance of the legislature or established government, or to the new-modelling of the state without the authority of law. No invective, therefore, how violent soever, against monarchy in general,—no abuse, the most outrageous, of the British constitution,-no proceedings, though ever so plainly tending to abolish that venerable system, and set up a new form of government in its room, would justify a charge of leasing-making. Because, though all involving the state and office of the king as part of the constitution, such projects are levelled against the whole system, and are not moved out of special grudge to the prince upon the throne, but spring from a deeper and more malignant principle, as well as employ more direct * more extensive means than that of mere slander of the person and conduct of the king. Thus sedition is a proper crime against the state, and holds the next place after treason, to which it is nearly allied, and which it may often but by a short interval, precede. The other is a personal offence, or verbal injury offered to the king and which the law considers in so much a more serious light than other injuries of that class, partly by reason of the just regard it has
* 2 How: Mod. St. Tr. 79. t? How. Mod. St. Tr, 25.