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for an instant, the most watchful police over general meeting. The circulation of such
the conduct of the disaffected. And what was works as Paine's Rights of Man was at that
actually their conduct in that season of general period likely to produce much evil. I believe,
alarm? Why, they were found in innumerable however, that feelings of compassion for Mr.
multitudes holding meetings throughout the Muir were general. I hope they are perfectly
whole land,—not going out one day under a consistent with utter detestation of sedition.
feeling of distress to petition the legislature, I believe sentiments of regret for the necessity
but forming themselves into permanent and which led to his prosecution and conviction
affiliated societies, corresponding with one were universal, and I say, with all due sub.
another throughout the whole kingdom, and mission to the law and the verdict of the jury,
with societies abroad, and smitten to such a that very many loyal subjects thought there
degree with an ambition to imitate every thing was room for a verdict of acquittal that the
in France, as to adopt French names and forms bulk of the nation regarded the sentence as-un-
in their associations. In short, an organised necessarily severe.
system of disaffection was formed, calculated The next case was that of Fyshe Palmer.
to strengthen the hands of the enemy, and to He was also connected with the Friends of
unite all the domestic desperadoes that could Freedom, and had circulated a political hand-
be mustered againstourown established govern- bill in Dundee and in Edinburgh addressed to
ment. Such was the condition of the country the lowest people. Hundreds and hundreds
when the trials for sedition were first brought of these, addressed to all and sundry, had been
on. In the course of ten months, societies by him committed to the winds of heaven; and
had been established, not only in every con- surely to sow such doctrines broadcast in this
siderable town in Great Britain, but in every reckless way, without pretence of any special
little village, which, as branches of the general end, was criminal and punishable. The hand-
society, appointed delegates to it. I think I bill contained much inflammatory matter, and
am not exaggerating the condition of the was proved to have been circulated by him.
country at that time, with a view to suggest, It was addressed to all and sundry, and at a
nor do I give this as an apology for some of time when the minds of the people were in a
the proceedings which then took place; but I dangerous state of irritation. No direct re
state it as it really was, that you may know medy was proposed for any of the evils com-
the true character of those proceedings. plained of, and the only object in view seemed

The first trial was that of Mr. Muir. It is io be a dangerous usurpation of power. I say
with pain I recollect that case. With all due there was real sedition in that case, and that
respect to the Court and the jury that tried it, it had no resemblance to the present, where
I cannot think it a precedent to be commended. there was merely one meeting, and one set of
I cannot but consider it as an occurrence to speeches, for the special object of preparing a
be lamented—since unfortunately it cannot be petition to parliament-with the preparation
forgotten. Yet, in that case there were many of which the whole business actually closed.
circumstances of aggravation, of which there The next and the only other cases were those
is no shadow to be found bere. Mr. Muir of the members of the British Convention,
was a member of the society of the Friends Skirving,+ Margarot,t Gerrald,ộ and others;
of the People in Kirkintilloch and in Glas- and certainly the existence of that extraordi-
gow. He had gone to France, where he nary association gave a peculiar character to
remained till after the war was declared. He the whole of these cases. That formidable
came back to Ireland, and assisted at several body, you may remember, was composed of a
meetings of the United Irishmen, and then set of persons acting as delegates from the re-
returned to this country, when he was arrested motest parts of Great Britain, and who had no
and brought to trial. The charges against him lawful business in this place, and no other
were relevant. He was accused of having visible purpose than to excite disaffection
excited the people to disaffection to the king who had no such thing in view as petitioning
and the established government: he was ac- the legislature, but who wished to organise a
cused of having industriously circulated the power independent of it, unknown to the con-
work entitled the Rights of Man, and other stitution, and incompatible with the existence
publications of a pernicious and seditious de- of its great institutions. They had private
scription. I am old enough to have attended meetings, and committees of emergency, some
the trial; I was not then at the bar, but I per- of which were only to act in the event of an
fectly remember the leading features of the invasion by a hostile force. Even taking the
case. I think the evidence was scanty; but statement which was made by those persons
still the charge was relevant; and if the proof in their own defence, and looking to the situa-
had been satisfactory he was guilty of sedition, tion of the times abroad and at home, it is
and therefore liable to punishment. At that impossible to doubt that it was necessary to
time there was a combination which seemed put down the Convention, and to inflict pu-
pregnant with danger to all existing establisb-
ments,-a combination formed by societies all 2 How. Mod. St. Tr. 237.
over the country, who appointed deputies to a + 2 How. Mod. St. Tr. 391.

1 2 How. Mod. St. Tr. 603. 2-How. Mod. St. Tr. 117.

2 How. Mod. St. Tr. 803.

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nishment on such as Skirving. I need go no 1: In urging this to you, I think I may refer further into details, but shall merely mention to an authority which cannot be either de that there was real, actual, and palpable sedi- spised or avoided--I mean the authority of tion in that case. My purpose, in alluding to the wbole kingdom, of the whole law, of the them, is to contrast them with the present whole majesty and power of the king, ministers, case, for eren in those times, and under all judges, and legislature of England of that the deplorable circumstances which I have country which has had the longest experience mentioned, this case would have been viewed of freedom, and has learned most thoroughly very differently from the cases then tried. by that happy experience how little real danger

The trial of Robertson and Berry* took place there is in the discontents, or even the occa. at a time far more critical than the present. sional violence of a free people. There, it They were tried for printing and publishing a would appear, they are noi so easily alarmed book entitled The Political Progress of Scot

--not so easily frightened at words, or so apt land, which, as to hurtful tendency, went far to suppose that the constitution can be brought beyond the pamphlet now in question. Such into hazard by a few intemperate expressions. and such taxes were said to have been illegally I quote, therefore, the example of England as imposed, and the constitution held out as a it stands at this present moment. Will any mere conspiracy of the rich against the poor; one say, that what passed at Kilmarnock •will yet the punishment inflicted was three months' bear any comparison, in point of indecency imprisonment to one of them, and six months and indecorum, to what is notoriously passing to the other. There were worse cases in 1793. in England every hour, and under the immeIn one, I mean that of Morton and Anderson,t diate observation of the judges and of parliait was proved that persons who were members ment. The orations of Hunt—the publications of the society of the Friends of the People of Cobbett and others-the meetings in Spahad gone into the castle-insisted that several fields and Palace-yard, are all, up to this of the soldiers should join the society—and hour, unchecked and unpunished and are given as a toast, George the third and last, met only by ridicule and precaution. In the and damnation to all crowned heads; yet, Royal Fxchange, at the doors of the houses of upon a clear verdict of conviction, nine months' parliament, at the gates of the palace, pubimprisonment, only, was inflicted. Two cases lications are openly -sold-Dot 400 copies of occurred in 1802. In one of them, under very dull speeches, but hundreds of thousands of gross circumstances, for the man was a soldier, daily and weekly effusions, containing, every and had said he was sorry the king was not one of them, matter far worse than what is shot, and that he could see his heart's blood found in this publication. I am sure no one on his bayonet, the punishment inflicted was can look into them, without being satisfied one month's imprisonment, and banishment that they contain strong excitements to disfrom Scotland for two years. The other was content, and that their authors are continually the case of one Jeffrey (I am sorry that should working upon the feelings of the country; yet have been the name), who, for wishing de- they are still holding forth their doctrines struction to king, queen, and royal fainily, without danger of interference. suffered three months' imprisonment.

See, then, what is the course, that all the wis· I have quoted these cases to show, that even dom in council, and policy of government, in in times when great rigour was necessary, that land of freedom have held? What is the cases much worse than the present were course they have pursued with regard to that leniently viewed; and I say, considering that portion of the people with whom originated we stand now in very different times, and any disorder that exists in the country, and the that the people at Kilmarnock had confessedly people to whom indeed the disorders are still no intention of holding conventions composed confined ? Notwithstanding the situation of of delegates from various quarters, or of pro- England for the last six months, this is the first pagating sedition in any way but were hungry and the only trial which the present disturbed artisans, who ouly met on os e occasion to pe- state of the country has produced. Really, I tition for something, they knew not what, which should not have expected to find the first trial they thought would afford them relief, and in this country. They that are whole need not never harboured any purpose of exciting or a physician. There has been breaking of frames rising in rebellion, but continued to prosecute in inany counties in England for eighteen their views by constitutional means; can you months; and yet his majesty's government have conceive, that if the more serious cases which a merciful reluctance, and are slow to call the I have been considering received such slight people to account even for those great excesses notice, the present case would, even then, while there is any reason to think that they have been thought worthy of any punishment have been produced chiefly by their misery. at all, or that any thing further should now be And with regard to the political commotions in done, than sending the panels home a little the metropolis, they know that a check to the admonished, and heartily frightened, to be spirit of freedom ought not to be given more cautious on any future occasion? without necessity ;--that the present tumults

have not arisen so much from wickedness of • 2 How. Mod. St. Tr. 84.

heart, as from the pressure of misery ;--- and * 2 How. Mod. St. Tr. 7.

with a paternal solicitude, they look watchfully

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and compassionately upon the people as if they genius of their countrymen is so apt to hurry
were in the delirium of a fever;-and they spare them,-especially when they find that far worse
them as deluded and mistaken only for a season. excesses are pardoned in England to the phleg-
That is the tone and temper in which the equal inatic English,-in whom they have far less a-
justice of England is dealt, and sure I am it is pology.
admirable, when compared with that which I have exhausted you and myelf,—but I have
would lay every newspaper open to prosecution, one word more to say. This is a case above
and stifle the voice of freedoin. Nothing but all other cases fit for the decision of a jury,
extreme necessity and immediate danger can -a case in which you can expect but little as-
justify the rearing up state prosecutions. Ac- sistance from the Court, and in which, I will
cording to the example of England, we should venture to say, you ought to receive no impres-
be slow to punish the people. In England, sion from that quarter, but judge and determine
much more has taken place to justify prosecu- for yourselves. The great use of a jury is, not
tions than has yet occurred in Scoiland. Looking to determine questions of evidence, and to
at home where no riots, and no rebellion exist, weigh opposite probabilities in a complicated
andwhere a great mass of misery has been more proof. lis high and its main use is, to enter
quietly and more soberly borne than in the sis- into the feelings of the party accused, and
ter kingdom, we should not be rash or hasty to instead of entertaining the stern notions of
stretch out the hand of vengeance against those fixed and inflexible duty which must adhere to
whose case calls rather for compassion than pu- the minds of judges who administer inflexible
nishment. Believe me, gentlemen, it will be law, to be moved by the particular circumstances
no honour, and no glory to us, to set the exam- ' of every particular case-to be touched with
ple of severity on such an occasion; nor will a nearer sense of human infirmities, and to
it redound in any way to the credit of our law temper and soften the law itself in its applica-
or our juries, that we were more sharp-sighted tion to individuals. It is on this account alone,
and jealous than our neighbours in weighing! I believe, that in foreign lands the privilege
the rash words of our fellow citizens, at a time of jury-trial as existing in this country is regar-
when they were suffering the extremity of dis- ded as so valuable. And certainly its value
tress. At such a season, expressions will be has always been held chiefly apparent in trials
used which it is impossible to justify; and for alleged political offences, --with regard to
offences will be committed, which will again which it is the presumption of the law itself,
disappear in seasons of prosperity. A vigilant that judges might be apt to identify themselves
police, in such a case, is all that is wanted. with the crown, as they belong to the aristocra-
Absurd and improper expressions at meetings tical part of society, and to those great establish-
for petitioning parliament hardly deserve no- ments which appear to be peculiarly threatened
tice; and a facility of obtaining convictions for when sedition and public disturbance are ex.
government on trials for such offences is uni- cited. Whether there is any reason for this
versally recognised as a mark of public servi- distrust is not now the question; and in this
lity and degradation. It is always most easy | Court I am perfectly assured that we have no
for the worst governments to obtain such con reason whatever, to doubt the impartiality of
victions,—and from the basest people. Affec- the Bench. But it is not to them that the coun-
tion to the constitution is planted substantially try looks,—that all Britons, and all Foreigners
in the hearts of the subjects of Great Britain; look, in questions with the crown, when as head
and it is only those goreruments which are of the state, il demands punishment on any of
doubtful of their own popularity, that are given | its subjects for alleged want of obedience.-In
to torture and catch at words, and to aggravate all such cases, the friends of liberty and justice
slips of temper or of tongues into the crimes of look with pride and with confidence to the
sedition and treason. If, on account of some right that a man has to be tried by his peers.
rash or careless expression at public meetings, If this question, then, is left to you, and to
people are to be punished as guilty of sedition, you only, I am sure you will not easily take it
There is an end to all freedom in examining the for granted that the panels at the bar were
measures of government. The public expecta- actuated by seditious motives. You will judge,
tion is alive to the result of the first of these whether in the publication of this foolish, in-
trials; and I say it will be no honour, and no i temperate and absurd book, there was an
glory to you, in such a case, to set the first ex- ! intention to excite disorder and commotion in
ample of finding a verdict which would subject the country, and that in this conduct my client
people to punishment in the circumstances of i was blind to his own interest, and to the evil
These panels. Even if you think that the crime consequences to his country. The essence of
is doubtful, I trust you will not be disposed the crime, I can never too often repeat, con-
yo lend yourselves to the over-zeal of his ma- 1 sists in the intention ; and in judging of this
jesty's professional advisers in this part of the you will take all the circumstances and all the
kingdom. I say, I trust you will not shew a acts of the parties into your view. In a sea-
disposition to follow, where the keen and jea- ' son of great distress, one single meeting was
lous eyes of persons in authority may spy out held for petitioning the Legislature,-a pur-
matters of offence; and that Scotsmen will not pose which redeems every thing that might
be forward to construe into guilt those excesses have been amiss in their proceedings. No-
of speech into which they know that the fervid thing but a petition to Parliament was, in fact,


the result of the meeting,—and 400 copies | in reference to which the public prosecutor only of these foolish speeches were printed. subsumes, that they are both, or one or other No steps were taken to promote disorder, but of them, guilty of the crime of sedition, actors the most entire tranquillity then and after- or actor, or art and part. wards prevailed.

You will have observed, that the evidence When I think of these things, I can have which has been laid before you is of a no doubt at all of the issue of this trial. You different nature as it affects the different cannot but perceive that the panels have not prisoners. One of them is charged with been proved guilty of sedition; for they have having delivered, at a meeting held in the not been proved to have said or done any thing neighbourhood of the town of Kilmarnock, wickedly and feloniously, or for the purpose of a speech, which the public prosecutor states to exciting tumult and disorder in the country. have been of a seditious nature, containing Their general conduct and character render a number of inflammatory remarks and assersuch an imputation in the highest degree im- tions, calculated to degrade and bring into probable; and the particular facts which have contempt the Government and Legislature, been proved are so far from supporting it, and to withdraw therefrom the confidence and that, when taken all together, they are obviously affections of the people, and fill the realm inconsistent with its truth.

with trouble and dissention; the manuscript of which speech he is charged with having

afterwards delivered to a printer, for the purLord Justice Clerk.-Gentlemen of the Jury; pose of its being printed. And with regard Although you have heard from the learned to the other prisoner, it is stated, that he preCounsel who has just now addressed you, pared for the press an account of the proceedwith infinite ability, on the part of one of the ings at the meeting, which account contains panels, that this is a case more fitted for the the speech above referred to, and others also particular consideration and final decision of alleged to be of a seditious and inflammatory a Jury than of the Court, and that here the nature, and that he assisted afterwards in its Court has less concern, and less to do, than in circulation, by exposing and actually selling it any other species of trial; I am much afraid in his own shop. that, in the view which I entertain of the duty It will be recessary for you first to consider incumbent on me on this occasion, I shall be what is the evidence of the facts as it applies under the indispensable necessity of still de to both and each of these prisoners. After taining you for some portion of time, notwith-calling your attention to the facts, I shall make standing the fatiguing duty you have had to some observations on the law of the case; perform

and I shall then desire you, upon these facts In consequence of the alteration of the law and that law, to consider whether there is relative to proceedings in this Court, it is no ground for the conclusion of the public prolonger necessary to take down the evidence in secutor. writing, but it is still the duty of the pre It may save you trouble, to state to you at siding Judge to sum up that evidence to the the beginning the definition of the crime of Jury who are to decide upon it; and notwith- sedition, as given to us by an authority, which standing what the learned gentleman said, is one of the most respectable with regard to (and I am not disposed to find fault with bis the law, that can exist in any country whatremark), I shall state for your consideration, ever. I do not know that there is any foundathe nature of the charge and the evidence ex- tion, in point of fact, for the supposition which hibited against the prisoners at the bar. But was mentioned, that the author I allude to even if I were not enjoined by the positive had ever been suspected of having any parauthority of statute to do so, I should not ticular bias in giving a view of this departhave hesitated, in such a case as the present, ment of the law. I never before heard that to state to you my view of the evidence and such a notion existed in the minds of the peoof the law applicable to it. It is your pro- ple. Bnt sure I am, if they who read his vince, indeed, to judge of the whole of the book look to the authorities and decisions to case; but sitting here as a guardian of the which he refers, they will be most decidedly rights and privileges of the people, and bound of opinion, that he has expounded the law in as I am to administer the law according to the most clear, able, and satisfactory manner. the best of my judgment, I have to state to Mr. Hume, the author to whom I allude, gives you, clearly and distinctly, my view of the this general description of the crime of sedilaw of this case, and then to leave it to you to tion*: “I had formerly, in drawing the line do your duty, as I shall now endeavour to do between sedition and leasing-making, a proper mine.

occasion to explain the general notion of this The Indictment exhibited against the pri- offence, and I shall not now attempt any fur. soners at the bar, contains in the major pro- ther to describe it (being of so various and position, a general charge of sedition, and in comprehensive a nature), than by saying that the minor you have the narrative of the fact, it reaches all those practices, whether by deed,

word, or writing, or of whatsoever kind, which Vide stat. 23 Geo. III. c. 45, made perpetual by stat. 27 Geo. III. c. 18.

* Vol. ij. p. 484.

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are suited and intended to disturb the tran-, composition is, generally, that it is of an inquillity of the state, for the purpose of pro- ! flammatory kind; such as by the principles it ducing public trouble or commotion, and inculcates, and the obloquy it throws out on moving his Majesty's subjects to the dislike, the management of public affairs, tends to the resistance, or subversion of the established infusion of jealousy and discontent among the government and laws, or settled frame and multitude; but without proceeding to any order of things.

proposal of a plan, or set of active operations, "Under this description would fall a work as grounded upon these principles, and fit to (such as it has been reserved for the wicked- be followed in the existing state of things; ness of the present age to produce), which this may with propriety be referred to the should teach that all monarchy and hereditary head of verbal sedition. It was for a comporank, or all clerical dignities and establish- sition of this character that Robertson and ments of religion, are an abuse and usurp: Berry* were convicted, as has been mentioned; ation, contrary to reason and justice, and and William Stewartt was outlawed upon a unfit to be any longer suffered or continued. charge of the like nature, on the 11th March, Or, though the piece should not set out upon 1793.” So that you see it most distinctly 80 broad. a principle as this, if it argue in stated, that'words, if of an inflammatory na. common with the many compositions which ture, though not followed by active operations, have lately been pressed upon the world) that will amount to verbal sedition. the power of the king is overgrown, and I shall content myself with reading to you one oughi, at any hazard, to be retrenched; or that other passage, without offering a word of my the Commons are a mere nominal and pre- own upon the subject. This passage refers to tended representative of the people, whose the distinction between the crime of sedition laws. are entitled to no manner of regard; or and that of leasing-making, which is still recogthat the whole state is full of corruption, and nized in our law. “But sedition is a crime of that the people ought to take the office of re. a far wider and more various description, as forming it upon themselves. All exhortations well as of a deeper character, which may equalof this kind, whether any commotion follow on ly be committed in relation to any of the other them or not (for if any do follow, then it will powers, orders, or parts of the public constidepend on the degree, fashion, and immediate tution of the land, or to any class or division occasion of that disturbance. whether it is not of the society of its inbabitants, and without treason in those who partake of it), are un- the use of special calumnies or slaoders against doubted acts of sedition, being calculated and the king, or any other individual; as by the employed for the direct purpose of loosening forming of combinations, the taking of resothe hold which the Government has of the opi- lutions, the circulation of doctrines and opinnions and affections of the people, and thus ions, or, in general, the pursuit of any course preparing them for acts of resistance or of measures and actions, such as directly tends aggression."

to resistance of the legislature or established Several of the instances which he gives of government, or to the new-modelling of the this crime were already read to you, and I state without the authority of law. No invecneed not repeat them. But I refer to another tive, therefore, how violent soever, against passage further on, in which the author con- monarchy in general, -no abuse, the most outfirms and illustrates his opinion. “The rea- rageous, of the British constitution, no proson in all these cases is the same. The crime ceedings, though ever so plainly tending to of sedition, therefore, lies in the stirring of abolish that venerable system, and set up a such humours as naturally tend to change and new form of government in its room, would commotion in the state. So near, indeed, is justify a charge of leasing-making. Because, the alliance between sedition and treason, that though all involving the state and office of the if, instead of sowing the seeds of a hostile dis- king as part of the constitution, such proposition to the Government, or preparing such jects are 'levelled against the whole system, materials as in time may kindle into a fame, and are not moved out of special grudge to the offender shall seek the same object more the prince upon the throne, but spring from a immediately, by a direct and definite exhort- deeper and more malignant principle, as well ation to the people to rise at that particular as employ more direct and more extensive season and conjuncture, as advantageous for means than that of mere slander of the person gaining their ends; this measure in like man and conduct of the king. Thus sedition is a nér, as a consultation to levy war, seems to proper crime against the state, and holds the be nothing less than an act for compassing the next place after treason, to which it is nearly death of the king, being a decided and ma- allied, and which it may often but by a short terial step towards the doing of that which interval, precede. The other is a personal cannot be done without the plain danger of offence, or verbal injury, offered to the king the Sovereigu's life."*

and which the law considers in so much a Again, in speaking of a distinction which more serious light than other injuries of that has to-day been glanced at, between verbal and class, partly by reason of the just regard it has real sedition, Mr. Hume expresses himself in these wordst: “If all at can be said of the

* 2 How. Mod. St. Tr. 79.

+ 2 How, Mod. St. Tr, 25. Vol. ii. p. 494. # Ibid. p. 496.

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