to the peace and tranquillity of the head of the state, the most eminent person in the land; and partly by reason of the possible evil influence of such an example on the affections and dispositions of his subjects." Having thus explained, from what I certainly take to be undoubted authority, what constitutes sedition, I have to state to you what is equally clear in point of law, and what it is of essential importance you should keep in view, and upon which both sides of the bar are agreed, that it must be held as the fundamental rule of your conduct in deciding this case, that by the law of Scotland your duty is not limited to a consideration of the facts merely, but that it is your province to take into view the nature of the speeches and writing complained of, as well as the fact of publishing; and I state to you in the words used by a distinguished judge in a former case of sedition, though not exactly parallel to the present, that it is not only your right and privilege, but your unquestionable duty, to say whether sedition has been committed or not.* Having paved the way to the consideration of the question before us, we are first to consider what is the evidence which the prosecutor has adduced as to M'Laren having delivered a speech containing passages such as those set forth in the indictment. You will recollect that you had brought before you Mr. Andrew Finnie, a witness on the part of the crown, but who, in reference to the whole of the transactions under consideration, was himself, to a certain extent, a party concerned. He was a member of the committee that prepared matters for the meeting, was himself present at the meeting, and was afterwards selected to take a lead in the subsequent proceedings. You are to judge of his evidence, which he appeared to give in a fair, open, and candid manner. I see no objection to the weight of his evidence. He says, that he is not able to speak distinctly as to the whole of M'Laren's speech, but that to the latter part of it he did pay particular attention. He swore that he heard him deliver these words: "We will lay," or " let us lay, our petitions at the foot of the throne, where sits our august prince, whose generous nature will incline his ear to the cries of his people, which he is bound to do by the constitutional laws of his country; and we are thereby bound to give him our allegiance: but if he should be so infatuated as to turn a deaf ear to the general cries," or, "voice of his people, to hell with our allegiance." This is the whole of the passage as far as the witness recollects. It was at the close of the speech these words were used. He states, that the words," And we are thereby bound to give him our allegiance; but if he should be so infatuated as to turn a deaf ear to the general cries" or "voice of his people," and not "just petition," being the words subsequently cited in the indictment, * See Lord Abercromby's summing-up in the case of Fyshe Palmer ante Vol. 2. p. 367. preceded these words" to hell with our allegiance." He is positive (and was equally so upon his cross-examination) with regard to what he heard M'Laren say. He states, that the words," to hell with our allegiance," struck him as strong, and that though he did not take any notes of them, he considered them so strong that he can swear to them. You will therefore consider as far as this witness goes, whether you have not a deposition to the very words. It will be for you to judge whether the exact words charged in the indictment have been proved or not, or whether the essential parts of the passage have been proved. When a very close affinity is in structed, it is for you to consider what is the fair import. Another witness was called on the part of the prosecution, who, though he gives but an imperfect account of the speech in general, does swear to what is deserving of attention. He remembers part of the speech towards the end," to hell with," or " for allegiance." He said, the words, "if he turned a deaf ear to the voice of his people," were followed by the expressions I have just cited about allegiance. This is the evidence of Merrie, and you will consider whether it does not corroborate the special account which Mr. Finnie gives of the speech he heard M'Laren deliver. No attempt was made to examine Finnie as to the situation where he stood at the meeting, or whether there was any noise or difficulty of hearing. The question as to the speech actually delivered does not rest here, because you will find it was admitted by M'Laren himself, in his declaration before the sheriff, that he did give in a manuscript containing his speech to the committee to be printed, and that the printed account" is near about what the decla rant said on the above occasion, except what is said about the middle of the seventh page as to allegiance, which the declarant thinks he did not deliver in the words as expressed in the publication." You have, besides this, the evidence of other witnesses. In particular, Samson swears, that the speech was read over in M'Laren's presence, and that Mr. Baird, the other prisoner, made an alteration on it in pencil; that he inserted words, making the speech conformable to the printed account of it here before us. So that this circumstance of the MS. having been produced, read over and revised, in the presence of these men, and an alteration being made by Baird, without any objection, as Samson swears, having been made by M'Laren, shews that M'Laren approved of the alteration, or at least that he did not oppose it; and this, with the other evidence, goes far to shew what was the true nature of the speech delivered upon that occasion. 5. You have to compare the printed report with the very words as heard by Finnie which came out of M‘Laren's mouth. If you think it your duty to take the printed statement as the true account of what was said," But should he be so infatuated as to turn a deaf ear to their just petition, he has forfeited that allegi ance; yes, my fellow townsmen, in such a case, to with their allegiance;" you will keep in view, that M'Laren gave in the manuscript of his speech to be printed, and was present when Baird inserted these words; and you will decide for yourselves, whether there is any doubt that he permitted that, which he took no steps to prevent. But again if you take into view the words as given by a respectable witness, and confirmed, to a certain extent, by another witness, and admitted by the prisoner himself to Mr. Johnstone, you will consider whether there is any rational ground for doubt as to the import of the passage of the speech which M'Taren delivered having beeen sufficiently established. Next, with regard to Mr. Baird, the case is of a different description as to the facts, for he is not alleged to have made any speech at all. The charge against him is, that he was one of those who printed and published a statement of those proceedings, containing not only M'Laren's speech, but those of others which are founded on as being of a seditious and inflammatory nature. It does appear in evidence that Mr. Baird was at meetings of the committee, both before and after the public meeting; and when the decision was taken as to printing and publishing the proceedings he was present. It has no doubt been proved, on his part, that he was one of those who did oppose in the committee the printing of the passage in M'Laren's speech, but that his objection was overruled; and had Mr. Baird's case rested here, and had the public prosecutor endeavoured to implicate him in the publication, by his merely being present at the public meeting, it would have been difficult indeed to have persuaded any jury to have found a verdict against him. But his conduct was different; for, after his objection had been overruled, he superintended the publication; and it is fully proved that he went twice or three times to the printing-office with Mr. Andrew, who was employed in revising the proof sheets, and that, upon one of these occasions he suggested the correction of a grammatical error. This evidence will probably be sufficient to satisfy you that Mr. Baird did take a concern in the printing and publishing of what is complained of, even after he stated objections to one passage. His conduct, therefore, at this period, makes him responsible, even if the evidence stopt there; but has it not also appeared in evidence, that Crawford holds him responsible for the payment of the printer's account? and were not many copies of the pamphlet sold at his shop? Mr. Finnie swore that Mr. Baird got some copies from him, and expressed surprise that the witness had not got quit of all his copies. Mr. Baird is not a bookseller, but a grocer, and disposed of the copies in his shop; one of which copies it has been proved was there bought by Hugh Wilson. Having stated to you what appears to me to be the result of the evidence in these particulars as to the facts of delivering and publishing the speeches complained of in this indictment, there still remains a much more important question for your decision, which it is your entire province to decide on, but with respect to which, it is my duty to submit a few observations to you. You have already had an op portunity of hearing, that on the face of this indictment, as the matters are there disclosed and undertaken to be proved, the court considered the charge relevant, and fit to be submitted to a jury; and now that the evidence has been led, and we have the whole circumstances investigated, I have no difficulty in stating, that notwithstanding all that I have listened to in the very learned, able, and ingenious criticisms, both on M'Laren's speech and on the passages of the publication which have been founded on, I am still of opinion that there is matter of a seditious description. It would be most improper, however, on my part to hold out to you that I think this a case of sedition of a most atrocious or aggravated description. That would be an erroneous impression. I have to observe, also, that I am far from thinking it proper, in the case you are now trying, to refer to other cases which are not parallel to it in the facts. But in reference to the prisoners at the bar, it does appear to me, and to the rest of the judges, to be clear, that there is on the face of the speech of M'Laren, and in the different passages which have been referred to, as well as in the context of the publication, matter of a seditious nature. How far that seditious matter has existence in point of fact, or is affected by the circumstances in evidence, or the remarks made on it, you, however are to decide. In judging of this, you are called upon to look to the intention imputed to the parties; and I concur with the learned gentleman in thinking, that it is the part of the public prosecutor to establish the criminal tendency of this alleged seditious publication. Criminal intention, or that the facts were committed wickedly and feloniously as charged, constitutes the very essence of the crime. You must be satisfied, that the proceeding was not only seditious in itself, but that there was the criminal purpose in the speeches and publication which is charged in the indictment. I do apprehend, that when a jury is called upon to decide upon the import of a speech or of a publication, it is their bounden duty to put upon that speech and publication a fair and even a mild interpretation. They are not called upon to stretch matters, or to endeavour to find out a farfetched meaning in words. If words are of an ambiguous nature, the mildest construction of them is to be adopted; but, on the other hand, reason requires that a sound, plain, honest meaning be given to language. It is not disputed by the public prosecutor (for he himself, in some measure, followed such a course), that it is necessary to look to the context, and not to take half a sentence of a speech or publication, but to give fair play to the accused, by referring to what precedes and to what follows. It is your business to take the documents into your own hands, and looking to the whole context to draw the conclusion whether there is sedition or not. It is hardly possible at this late hour to go through every one of the passages which are founded on, and far less through the whole publication; but I beg leave to say, in reference to the speech of M'Laren, that there do appear to me a most improper style and tone in the whole of it. He refers to transactions of a very distant period, of which no soberminded man would wish to revive or obtrude the recollection, as affording any rule of conduct for the people of this country, in reference to their present situation. From the beginning of the speech, in which complaints are made of the oppressions under which the country is labouring, to the conclusion, in which reference is made to the Prince Regent, there is a general style of inflammatory declamation. Nor was this effusion unpremeditated, for notes of the speech were prepared by him at an earlier or later period before the meeting. Without going into particulars, I say there is a tone and language in this speech which are strongly inflammatory, and tending to excite in the people discontent and disaffection against the government and legislature. Of this it is, however, your province to judge. I have no difficulty in saying that the language appears to me not to be of a description which can be reconciled to the single object of petitioning. The passage upon which the most important comments have been made is that with regard to the petition to the Prince Regent, and the consequence of his not listening to the just petitions of the people. The passage is in these words: "Let us lay our petitions at the foot of the throne, where sits our august prince, whose gracious nature will incline his ear to listen to the cries of his people, which he is bound to do by the laws of the country: But, should he be so infatuated as to turn a deaf ear to their just petition, he has forfeited their allegiance. Yes, my fellow-townsmen, in such a case, to hell with our allegiance." Take the expressions as given either in the publication, or as in evidence by the witnesses, and say what is your opinion as to this part of the speech. to the petitions of the people at large, or to the petition of these particular persons. The term, just petition, no doubt, is employed. But who is to judge of the justice of the petition? It would appear from all that passed that the petitioners themselves were the judges. What was said to be the alternative if this petition was refused ?" To hell with allegiance," or "our allegiance." I ask of you, as sensible and reasonable men, whether this language does not indicate that the Speaker had formed a purpose of throwing off his allegiance, in the event contemplated of a rejection of the petitions in question? He was to array himself against his sovereign, not in the ludicrous manner that Mr. Jeffrey suggested, but in a very different and much more serious manner; and I boldly affirm, that if a single step had been taken, by following up the language then employed by any overt act, it would not have been sedition, but plain and palpable treason. Whether the language that was here used, which, it has been said, only expresses a very delicate principle in the constitutional law of this country, was calculated to excite discontent, disunion, and public disturbance, is the question for your decision. You will judge whether the words were uttered; you will give them fair play in judging of their meaning; and in the interpretation of them you will refer to the other parts of the speech. In that way, you will satisfy your minds as to the grounds of the conclusion you may come to, and decide as to the intention of the speaker, and the import of the passage. You will judge, also, of the meaning of the term "Oligarchy," which occurs in the speech, and in different parts of this publication: you will consider whether it alludes to any of the branches of the legislature, or must be limited to the persons forming the actual administration. I coincide with the opinion which was hinted at by my brother on my right hand particularly when I consider the way and manner in which the term is explained by another speech founded on in the indictment. "We have these twenty-five years been condemned to incessant and unparalleled slavery by a usurped Oligarchy, who pretend to be our guardians and representatives, while, in fact, they are nothing but our inflexible and deter mined enemies." I think it is impossible, by any interpretation, to suppose that this has reference to ministers. It obviously has refeA great deal of most able and ingenious rence to the House of Commons, one of the criticism has been bestowed upon this passage, branches of the legislature. When they comand with it the counsel for the panel grappled plain of the oppression under which the coun to the utmost, perceiving it of vital importance try labours, they have reference to the Comto the interest of his client. He was bordering mons House of Parliament. I think the same upon very delicate ground, indeed, in the de-interpretation is applicable to M'Laren's fence which he maintained. But, after all you have heard on the subject, you are to consider, whether, notwithstanding the favourable remarks made in reference to the Prince Regent, which I admit do appear in the first part of the passage in question, the language in the following part be justifiable, as having reference. VOL. XXXIII. speech. You are to consider, then, whether the House of Commons, as now constituted, is meant to be designated by the "usurped Õligarchy, who pretend to be our guardians and representatives, while in fact, they are nothing * Lord Reston, vide p. 16. K but our inflexible and determined enemies," There are other passages, into the consideraand who have these twenty-five years con- tion of which I cannot now enter. I shal demned the country to incessant and unpa-just refer to one which has been commented ralleled slavery; and you are to determine, whether, by propagating such opinions in a speech to an assemblage of 4000 persons, and afterwards introducing them in a pamphlet which was sold and circulated in the country, the panels were not guilty of sedition. I submit to you, that if there is any meaning in words, this was degrading the House of ComInons, casting on them the imputation of having enslaved the country for the twentyfive preceding years, and attributing to them all the misery which the country is represented as suffering. on at great length. The passage is, "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," &c. It is said that there has been language used in parliament, and passages in petitions presented to parliament, stronger and more offensive in their nature, than this founded on by the public prosecutor; and that such petitions were received and laid upon the table of the House of Commons. Passages were read to you to prove this. Upon this part of the subject I must observe, that what is, or is not, tolerated by the Houses of Par sion. They are the best judges of what is a violation of their privileges; but this much I state to you, that if seditious language be used out of doors by persons in preparing a petition for parliament, even if that petition should embody the seditious words themselves, it cannot be pleaded against a charge of sedition that the petition has been received by parlia ment. We are bound to judge of the language employed by the test of law and common sense, and by that test to determine whether it is seditious or not. It has been held, again and again, to be no justification, in a charge of sedition, that language even of a more seditious tendency had been used in or out of parliament without being followed by any punishment.—It is stated for these panels, that stronger language has been used in other quarters; but the answer is, that is nothing to the question under consideration. If the language here be seditious, it is no matter whether such abuses have been passed over on other occasions. If such petitions as those referred to had been particularly brought under the view of the House of Commons, I should think they must have been rejected; and it would be matter of astonishment to me, indeed, if petitions couched in language far short of what is now before us were received. But in the multiplicity of petitions presented to that House, some may pass without due attention. Perhaps very objectionable petitions do lie there. But if the public prosecutor proves in this Court the utterance and publication of seditious language, it is of no consequence that petitions containing such language have even been received unchallenged by the House of Commons. There is another passage in the publication to which I think it necessary to call your at-liament, must be foreign to our present discustention. I mean that general statement which which was made as to the proceedings which took place in the year 1793. You will find the passage in page 2, of the indictment. "But let us come nearer home. Look at the year 1793, when the debt amounted to two hundred and eleven millions, and the annual taxation to about eighteen millions; when liberty began to rear her drooping head in the country; when associations were framed from one end of the kingdom to another, composed of men eminent for their talents and virtue, to assert their rights; when a neighbouring nation had just thrown off a yoke which had become intolerable,-what did the wise rulers of this country do? Why, they declared war, not only against the French nation, but also against the friends of liberty at home." It has been argued, that the term, "wise rulers," meaps the ministers for the time, and that their conduct may be discussed without blame. I concur in the observation, that there is no sedition in the censure of administration merely as servants of the crown. But the passage clearly applies, not only to the government of the day, but to the system of government,-to the legislature itself. How can that be doubted, when you observe the concluding words: "Why, they declared war not only against the French nation, but also against the friends of liberty at home." Look, also, at the context. The clear import of it is, that when the country was in the awful situation described by the learned counsel, the government declared war against the liberties of the country. What took place at that time is matter of notoriety. New measures were then necessarily resorted to for the salvation of this country against the attacks of foreign and domestic foes. King, Lords and Commons, united for the purpose of securing the liberties of the country, and their measures are here manifestly represented under these words: "They declared war not only against the French nation, but also against the friends of liberty at home." You will say, in point of fact, whether the ministry or the whole legislature were referred to in this passage, and whether to circulate it was not to propagate sedition throughout the country. There is a part of the defence, however, deserving of your serious attention. It was ably argued by Mr. Clerk, that the language which is here complained of, having been used in connection with the exercise of the legal right of petitioning the legislature, cannot be considered as seditious. God forbid that any thing should be said by me hostile to the right of petitioning the House of Commons, the House of Lords, or the Sovereign, if the people are respectful in their language; for to in Britain in 1817 that we are called on to consider such cases. An allusion was made to the state of the country at the former period, as accounting for, and justifying the prosecu tions which then took place, as well as their result. But the learned counsel was afterwards under a necessity of alluding, also, to what has recently happened throughout the empire at large. Extraordinary and strong measures have been adopted, and the enactment of new laws has been rendered necessary by the state of the times. But you are not to be affected by such considerations, and I would not even have alluded to them had they not been alluded to by the counsel. You must lay all considerations of this kind out of your view; and, considering this indictment as brought by his majesty's advocate in the discharge of his duty, you are to determine on the facts, and say whether the panels are guilty or not of sedition. state grievances, and apply for redress, is the undoubted and unalienable right of the subjects of this realm. But I have no difficulty in saying, that if, under the pretence of petitioning, language of a seditious nature be used, those using or publishing it must answer for the consequences. The sacredness of the right which is to be carried into effect, will not sanction the use of unlawful means in the accomplishment of it; and those who come forward upon such occasions must abstain from inflammatory, seditious, or treasonable expressions. It would be a gross abuse of the inviolable right of petitioning, if it afforded an opportunity for every kind of language being uttered, however improper or reprehensible. Such never can be the result of what is due to the sacred right of petitioning; and therefore the learned gentleman admitted that he did not carry his argument so far as to say, that a petition may sanction any thing of an improper nature; but he argued, that if you be satisfied that the object was, to petition the legislature, you will be disposed to make due allowance for the language which may be used in calling attention to grievances. To this extent the observation is well founded. His good sense must have made him perceive that both the law and constitution would sink under any other doctrine. That is the test to which you are to bring the matter now under your consideration. You are to look to the whole facts and whole publication; and you will judge whether, when the people assembled to prepare this petition, there was or was not a blameable excess in the language employed by them, and whether this was not greatly aggravated by the proceedings of the meeting being embodied in a publication, and circulated over the country. I have no wish, gentlemen, to press this case further than the facts appear to warrant. It is your bounden duty to weigh all those expressions which are fairly admitted to be too strong, and even indecent; and it is your province to say, whether these expressions do amount to sedition, have a tendency to bring into contempt the government and legislature, and to stir up the people to disaffection and rebellion. I certainly do most sincerely lament that our attention has been called to this case. This is the first trial for sedition that has occurred for a considerable length of time; and I can assure the learned gentlemen that I had fondly flattered myself, that even at my time of life I should not have again had occasion to apply my mind to the study of this part of the law. I hoped and trusted, that after the clear exposition of the law in 1793, 1794, and 1795, in the different prosecutions which were then found necessary, sanctioned and approved of by the unanimous voice of the country, I should not have been obliged to consider cases of this description. But so it is, that although the situation of this country is so highly prosperous and enviable when compared with the rest of Europe, it is I regret extremely, in a different point of view, that this should be the first case brought before this Court, and from a county with which I am connected by so many ties. It appears to me that both of the prisoners had been men of exemplary conduct and good character. According to the evidence, M'Laren's private character had been very respectable. Nothing but what was right had ever been observed in his conduct. He had never demonstrated any thing like a disposition to tumult or disturbance, but was a volunteer, and had served as such with reputation. The testimony to his general character well deserves your consideration, in judging of the criminal intentions of the parties, and deciding whether their purposes were seditious. With regard to Mr. Baird, again, you will concur with me in deeply lamenting the exhibition of this charge against him, standing as he has done in so fair a situation in society. Many of the witnesses, even for the crown, have given him a high character. The inhabitants of Kilmarnock had some time ago appointed him one of their police commissioners, thus showing their good opinion of him. It appears, that he was a man of respectable moral character, and, in the opinion of the witnesses, attached to the government and to the constitution, though he had a strong opinion of the propriety and necessity of a reform in parliament. It has been strongly affirmed for him, that he never had any thing further in contemplation upon this or any other occasion. With regard to both the prisoners, they were not known to have been ever connected with any other political societies. These are points important for your consideration in judging of the essential question which you are to determine as to the guilt of the prisoners.. If, upon a careful consideration of the whole facts in the publication, and the evidence which has been adduced, you shall be of opinion that no sedition or seditious intention has been proved against the prisoners, you will find by your verdict that they are not |