guilty of the charge. If, on the other hand, you are of opinion that there is seditious matter in the speech and publication, and that the charge of criminal intention imputed to them in the indictment has not been done away by the general conduct of the prisoners, you will not, I am confident, shrink from your duty, but will find them guilty of the crime of sedition libelled in the indictment. And, if you think that the scales hang doubtful, and that it is difficult to say whether the prisoners were guilty or not, the former good character and conduct of these men are entitled to favourable consideration. I leave the case in your hands, being confident that you have paid most particular attention to all that has passed, and can have no object in view but to return a conscientious verdict. Whatever you may do, I trust your verdict will be satisfactory to your own minds, and equally so to the public.

April 7th, 1817.

led to expect from a jury of your respectability, after the unwearied attention you have bestowed upon the whole of the trial. I am confident that this verdict, while it is satisfactory to your own minds, will be of great service to your country; and I have only to add, that the recommendation with which you have accompanied the verdict, and which, under all the circumstances of the case, is so proper, will meet from the Court with all the attention it deserves.

Lord Advocate.-It only remains for me now to crave the judgment of the Court.

Lord Justice Clerk.-Have the counsel for the prisoners any thing to say on this verdict?

Mr. Jeffrey.-In stating to your lordships, in one or two words, what has occurred to us on the verdict, I hope I am not doing more than my duty. It appears to us, that though, its general meaning is impossible to be mistaken, there is an inaccuracy in one point, which is worthy of consideration. Both the

Jury.-Mr. M'Kinlay.

[Mr. M'Kinlay gave the verdict into court.] Lord Justice Clerk - Alexander M'Laren and Thomas Baird, attend to the verdict of the jury on your case.

At Edinburgh, the 6th of April, 1817 years. The above assize having inclosed, made choice of the said Archibald Mackinlay to be their chancellor, and of the said John Baxter to be their clerk; and having considered the criminal indictment, raised at the instance of his majesty's advocate for his majesty's interest against Alexander McLaren and Thomas Baird, panels, the interlocutor of relevancy pronounced thereon by the Court, the evidence adduced in proof of the indictment, and the evidence adduced in exculpation, they, by a plurality of voices, find Alexander M'Laren guilty of the crimes libelled in the indictment; and Thomas Baird, all in one voice find him guilty of the crimes

libelled in the indictment. But, in consideration of their former good character, unanimously recommend them both to the clemency of the Court. In witness whereof, their said chancellor and clerk have subscribed these presents, consisting of this and the preceding two pages, in their names and by their appointment, place and date aforesaid.

(Signed) A. MACKINLAY, chancellor. J. BAXTER, clerk.

Lord Justice Clerk.-Gentlemen of the jury, you are now discharged from the very fatiguing and painful duty which you have had to perform; and I feel it incumbent on me to state to you, that the verdict which you have returned, is, in its general result, such as I was

other crime, and the verdict has found them both guilty of the crimes libelled, using the plural and not the singular number. There may be many facts charged in the minor proposition of the indictment, but there is only one crime charged in the major proposition in this case; and you are aware that the verdict minor proposition. Logical accuracy is always is an answer to the major, and not to the required on these occasions, and this, therefore, is not a verdict on which the Court should proceed to inflict punishment. There is only one crime charged in the major proposition, and the minor contains different acts libelled on in proof of the crime stated in the major proposition, and yet the verdict finds the panels guilty of the crimes libelled on. I am now arguing to a court of law, and not te prisoners guilty of the crimes libelled, has found a court of equity. The verdict, in finding the them guilty of something not charged against

them.

There is another circumstance which it is

my duty to mention, that this verdict appears to be dated on Sunday. I believe this objection has occurred in other cases, but has never hitherto been seriously argued.

Lord Justice Clerk.—Mr. Jeffrey is only doing his duty in stating any objections that occurred to him. But I apprehend there is nothing in the objections which have been offered. The mere slip of a letter cannot be considered as a substantial objection in this If two crimes had been charged in the major proposition, and the verdict had only it might have been difficult to say which of the found the prisoners guilty of the crime libelled, crimes was meant. But here there can be no doubt of the meaning of the verdict.

case.

Lord Hermand-I remember in a trial at Ayr, of oue Lowrie, on a charge of theft and

reset of theft, the jury found the panel guilty | of the crime libelled. I pleaded that the verdict was void, as being uncertain, at least that the mitior poena should be inflicted. Lord Justice Clerk Miller adopted the latter alternative, and imposed an arbitrary punishment. A similar circumstance occurred in a question before the Court of Admiralty, about a wreck on the coast of Orkney.

nutes should not be garbled. Is not that evidence that these were the words uttered in the speech? But it is unnecessary to go through the evidence. It appears to me, that it was not the ministers of the day, but the constitution that was attacked. But I need not go into that. All that remains for us is, to consider the amount of the punishment to be inflicted on the prisoners.

The milder the punishment can be made, if it be such as may deter others from committing the like crimes in time coming, that is the

Lord Hermand.-I concur in the observations which your lordship addressed to the jury. I think this jury deserves the thanks of the Court; and, what is more, the thanks of the country. I think they deserve the thanks of another class of men, of whom I know little but by report of those who are considering how far they may go in opposition to the constitution with safety to their lives.

It was said by counsel, that the present was far from being an aggravated species of sedition. I like it the better for that. It is more agreeable to my feelings-to the feelings of every jury, and of every judge-to have more moderate crimes to try, than to be obliged to inflict transportation, or death.

I am the more impressed with a sense of the merits of this verdict, that when in groping my way about 11 o'clock at night, in the dark streets of this city, and reflecting with myself what verdict I should have given, had I been a juryman in this case, such was the effect of a blaze of eloquence, that I cannot say whether I would have said yes or no, if I had been at that time obliged to give an opinion, whether or not the prisoners were guilty. Like the jury I should have wished to have been inclosed for consideration. But, having bestowed it, any doubt disappeared, and I came to the opinion, that the relevancy of the indictment was clear and the facts completely proved.

Every word every letter of this indictment has now been found proved. The jury have found it proved, that after speaking of the Regent with due respect (whether seriously or not I do not know), they go on to state, "But should he be so infatuated as to turn a deaf ear to their just petition, he has forfeited their allegiance; yes, my fellow-countrymen, in such a case, to hell with our allegiance."

It is not the time now to inquire into the evidence; though, were that competent, I should be clear that this very expression is proved against the panels. And it has thus happened, as often occurs, that the strongest circumstances come out in the evidence of the exculpatory witnesses. What I allude to is, the deposition of Brown, who says there was a vote put in the committee with regard to printing the above passage; that some objected to it being printed; and that another said it ought to be published in order that the mi

of your lordships. This case is different from those tried in 1793 and 1794. I looked into them last night. They are extremely different from the present case. There the punishment awarded was transportation. None of your lordships can be of opinion we can here go that length; and, considering the recommendation of the jury, I think we shall satisfy our own conscience and the justice of the case, by inflicting six months' imprisonment on the panels. At the same time, they should be obliged to find security to keep the peace for the period of three years; Mr. Baird, who appears to be a man of opulence, under the penalty of 2007., and the other under that of 401., which I think is not unreasonable.

Lord Gillies. Both of the unfortunate panels at the bar stand accused of sedition. Of that

crime, after a long trial, conducted with infipite ability on both sides, the unhappy persons have been found guilty by a jury. Under these circumstances, nothing remains for us but to give effect to the verdict by inflicting such punishment as it appears to us their case consideration, and among others the recomdeserves. Taking all the circumstances into mendation of the jury, I concur in opinion as to the punishment which has been proposed that they should be imprisoned for six months, and find security for good behaviour.

*

Lord Pitmilly-In considering the judgment which should be pronounced on this occasion, we naturally look to the judgments which have been pronounced in similar cases, and particularly to those which have been referred to by lord Hermand. For, in every branch of judicial procedure, and in nothing more than in pronouncing judgment on a verdict inferring an arbitrary punishment, it is desirable to be guided by precedents. If this case had re sembled the case of Fyshe Palmer, to which it has been assimilated by counsel, I should have given it as my opinion that the punishment should be the same as in that case. And if, unhappily for this country, such cases of real and aggravated sedition shall come before this Court cases little to be distinguished from treason-it will be my opinion, after a full consideration of the law, and of the whole of the former cases, that transportation is the proper punishment. But I agree in the opinion

* 2 How. Mod. St. Tr. 337.

which has been expressed, that this is a case very different from the others alluded to, and that it has a nearer resemblance to that of Robertson and Berry, than to any others which occurred at that time; and I therefore think that imprisonment is the appropriate punishment in this case, and that which is pointed out by precedent. As to the duration of the confinement, I am always averse to long imprisonment; and considering the recommend ation of the jury, I concur in the limited time proposed in this case.

Having said thus much, I must express my hopes, that this verdict will put down the crime of sedition at the present juncture in this country. It was urged in defence of the prisoners, that the culpable expressions were employed when the persons were met, in a season of distress, to petition the King and both Houses of Parliament. But surely the right of petitioning may be exercised without making the speeches and resolutions, at such meetings, vehicles for sedition and treason. What was said in a former case as to the liberty of the press and of speech, may be applied to the right of petitioning. As every man may print or may speak what he pleases, so may he use what language he thinks fit in his petition, or in the speeches and resolutions accompanying the petition: But under this condition, that if in his petition, or in the speeches and resolutions accompanying it, he is guilty of treason, sedition or scandal, he must be answerable for the consequences, just as he would be answerable for those crimes if committed by him in exercising the liberty of the press, or the liberty of speech. Why should it be otherwise? I cannot believe that this necessary restraint on the right of petitioning will be any obstruction to the right itself. If the real object of the petition be to obtain its prayer, why should it be couched in offensive terms? Is that the way to attain its object? It is the very reverse. It is the way to get it refused. Such a course can be followed only for the purpose of getting a refusal, and at the same time spreading alarm through the country. To check such conduct, as the verdict of the jury tends to do, instead of injuring the right of petitioning, is the method of securing it, and rendering it truly valuable to the country.

I have read the whole of the pamphlet from which extracts are made in the indictment, and I am sorry to say I have formed a much worse opinion of the intentions of all the parties than I had by reading the indictment, or by any thing that passed on the trial. It may have done little injury, for the range of its circulation was limited; but let any intelligent man consider what would have been the consequences, if this pamphlet had passed unnoticed, and if similar publications had been circulated in every village and populous town in the country. No man who reads this pam

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

phlet can hesitate to say, that in such a case the country would have been filled with the most combustible materials, and that a slight spark would have lighted up rebellion from one end of the island to the other.

I shall only add, that if the prisoners and their associates will not learn wisdom from the verdict, and the opinion of the Court, I trust they will learn it from what was uttered by their own counsel, with a force of eloquence which, I trust, has made a lasting impression on them. Mr. Jeffrey told them that they were treading on delicate ground, that the expressions they used were most improper, indecorous, and absurd, and that what they said only betrayed an ignorance of the subject on which they spoke. I trust they will remember this lesson, and that all others will learn to profit by their example.

Lord Reston.-I am of the same opinion with the judges who have spoken regarding this verdict, and I particularly agree with the words which have fallen from the last judge who delivered his sentiments. I shall only further observe, that while I concur most cordially as to the punishment proposed to be awarded in this case, I have no doubt either of the right or the duty of the Court to inflict a higher punishment when required; and especially to award the punishment of transIn the present case, the short period of importation in a case of aggravated sedition. prisonment which has been suggested, is, I think, sufficient, all circumstances being con

sidered.

Lord Justice Clerk.-I am extremely happy, that, under the whole circumstances of this case, and particularly the recommendation which has been given to your lordships by the very respectable jury who had to try it, I am enabled, in the discharge of my duty, to concur in the proposition now made as to the punishment which should follow upon this verdict. For I have, upon the most mature reflection, and the most deliberate consideration I have been able to bestow upon the law of the case, formed a clear and unalterable opinion, that, for cases of aggravated sedition, such as those which have been alluded to by some of your lordships, the proper, the legitimate, the necessary punishment for this Court to award, is, the highest short of a capital one.

I take this opportunity, however, of stating as I before did to the jury, that, notwithstanding the particular circumstances and aspects of this case, it does not appear to be one of that highly aggravated class. But I should be guilty of a dereliction of my duty if I did not take this opportunity of distinctly stating, that, though not one in the highest class of sedition, the offence of which these prisoners have been convicted, upon evidence, clear, satisfactory, and convincing, is a species of sedition attended with circumstances of considerable aggravation. I allude, in particular,

to the case of the prisoner, Thomas Baird. | For, though I did not think it necessary or proper in me to dwell on that circumstance in my observations to the jury when I summed up the evidence to them, I do now think it my duty to state, that the situation in which that gentleman stood,-the rank of life in which he formerly moved,-the character he possessed, the influence he had,—and, above all, the commission which he had lately held as an officer, do, in relation to this offence, and to the circumstances in which it was committed, render his case of greater aggravation than that of the other prisoner.

This gentleman, although moving in an elevated sphere in the town of Kilmarnock, and selected by its inhabitants to be a commissioner of police, is proved, by incontrovertible evidence, to have associated for days with persons, some of them of the very lowest rank (for M'Laren is only an operative weaver), forming a deliberate plan for the meeting which has brought him into his unfortunate situation. I should have conceived Mr. Baird would have much better discharged his duty to his country, would have shown a much better attention to the general distress, (for which I greatly feel, but trust it is now in a way to be alleviated), had he confined his exertions to contributing, according to his means, for the mitigation of that distress, instead of taking those active measures which it is proved he did take, in preparing the business,-in meetings,-in concocting the measures of the day,-and, above all, in actually putting in the mouth of the automaton who appeared in that box, a speech, which, when it is examined, will be found to contain the most scandalous and seditious matter. For the contents of that speech, whether Burt was the real or pretended author of it, Mr. Baird rendered himself responsible. I must therefore say, that, considering Mr. Baird had filled the honourable situation of Captain in a volunteer corps, he had altogether forgotten his duty in ever lending himself as a party to any such proceedings, the guilt of which is now attached to him by the verdict of the jury.

With regard to Alexander M'Laren, I have only to say, that he has been found guilty of delivering a speech which answers for itself, and I shall add nothing more on the subject.

But there is one observation which, in my former remarks, I omitted to state to the Jury, and therefore now think it my duty to make, upon the passage in the indictment taken from one of the speeches, in reference to the conduct of the clergy of Scotland. Your lordships know well to what I allude. The passage is, "Their Reverend hirelings would convince you that you are suffering under the visitation of the Almighty, and therefore ought to be submissive under the chastening stroke." I have asked myself this question, after paying every attention to the ingenious and eloquent observations made in order to give the

go-by to this passage, what could be the true meaning of those who were accessory to this most scandalous libel on the clergy of Scotland. I have asked myself, whether it was meant to be applied to the Established Clergy, who are thus branded with being "Reverend hirelings, who would convince the people that they are suffering under the visitation of the Almighty, and therefore ought to be submissive under the chastening stroke." Is there any thing in their character to warrant such imputations against them? Did not all those who attended that meeting know, that there is not one of the Established Clergy who is not completely independent of the crown itself, and that they hold their situations as securely as any persons whatever do their property? What is there then in the conduct and character of the Established Clergy which could render them liable to the shameful imputation, that, as hirelings, they could be guilty of inculcating any particular doctrines? And what is the foundation of this charge? It is, that they are guilty of having endeavoured to impress on their hearers, that the distress of the country is to be viewed as the dispensation of Providence. Is there any man, with the slightest impression of religion on his mind, who will deny, that the severity of a bad season, the pressure of a bad harvest, proceeds from the will of Providence? Or was it meant to be impressed on the deluded and ignorant hearers at that meeting, that the Government, or any portion of the people, were responsible for the distress prevalent in the country, which had been occasioned by a bad harvest, that had doubled the price of the necessaries of life? And yet because resignation to the Divine Will had been recommended by the Clergy, they are branded as hirelings.

On the other hand, I have asked myself whether this charge was meant to be imputed to the respectable body of dissenting clergymen, who, almost without a solitary exception, have shown themselves to be attached to the best interests of the country, and have been distinguished for their loyalty and steady allegiance? Is it this class that was meant to be so branded? If so, they have to thank those of their flocks who could give countenance to the publication of such scandal against them. This passage appears to me to designate the true character of the publication as most objectionable and inflammatory. It was intended to weaken the affections of the people to the government and established constitu tion of the country, while the character of the ministers of religion was likewise to be degraded. I ask, what would be the consequences if such proceedings were unchecked?

Notwithstanding this circumstance, however, which it was my duty not to omit to notice, Í am happy, that in reference to the strong testimony borne to their good characters in times past, backed by the recommendation of the jury, we are justified in the discharge of

our sacred duty, in pronouncing the mild sentence (for the sentence certainly is extremely mild) which has been proposed, viz. that they shall be imprisoned for six months within the Tolbooth of the Canongate of Edinburgh (thus making the punishment of imprisonment as light as can be done), and that Thomas Baird shall find security to keep the peace for three years under the penalty of 2001.; and that Alexander M'Laren, in reference to his circumstances, shall only find security for the same period under the penalty of 401.

|

Alexander M'Laren and Thomas Baird: after a most careful and attentive consideration of the whole circumstances of the case that was exhibited against you, a jury of your country has found both and each of you, the one by a plurality of voices, and the other, all in one voice, guilty of the crime of Sedition, as charged in the indictment. It is, I can assure both of you, a painful duty for me to announce to you, in reference to this verdict, the judgment which the Court has found it necessary to award against you. I say, I do it with sincere regret, when I reflect on the strong testimony that was borne to your former good characters. I lament that you had permitted yourselves to be misled on this unfortunate day of the 7th of December, the one to utter, and the other afterwards to give circulation to what a jury has pronounced to be sedition. I do trust and hope that the result of this verdict, and of the opinions you have heard pronounced by the whole Court, will have its due effect on both of you; that it will teach you, that however apparently innocent your proceedings may have been, they did result in crime, and might have been, if the example had been generally followed, productive of mischief to the interests of your country. I trust also, the salutary check given to proceedings of this description, will have an important effect on the public mind, by showing, that sacred as the right of petition is, entitled as the people of this free country are to state their grievances to government and the legislature, and to point out what may appear to them as remedies, that right affords no screen or protection to those, who, in the prosecution of that lawful object, lose sight of their duty, and are guilty of the crime of sedition.

While the subjects of this country are entitled to state their grievances to the legislature, they must be careful, that neither in the previous proceedings, the speeches and resolutions, nor in the petitions themselves, they insert matter which is clearly of a criminal nature, seditious in its tendency, and likely to produce lasting mischief to their country. It will teach them, that although entitled to exercise that right, they must not, in its exercise, be guilty of a violation of law. I therefore trust that the result of this trial will be of important benefit to you in the course of your future lives, and that this Court shall not, with regard to you or others, have soon occasion again to animadvert on the crime of sedition. I likewise trust, that considering the recommendation of the jury, and the lenient punishment which, under all the circumstances, is about to be awarded against you, you will firmly resolve, that, when you again return to society, in which you formerly moved in a respectable line, you will be sincerely loyal in your hearts, and attached to the true interests of your country and the constitution under which you have the happiness to live.

SENTENCE.

The Lord Justice Clerk and Lords Commissioners of Justiciary having considered the verdict above recorded, in respect thereof decern and adjudge the said Alexander M'Laren and Thomas Baird to be carried from the bar to the Tolbooth of Canongate of Edinburgh, therein to be detained for six months from this date, and thereafter until they shall find sufficient caution and surety, acted in the for the space of three years from and after the books of Adjournal, for their good behaviour expiration of the said period of imprisonment, and that under the respective penalties following: viz. The said Thomas Baird under the penalty of 2001. sterling, and the said Alexander M'Laren under the penalty of 401.; and upon the lapse of the said period of imprisonment, and finding caution as aforesaid, grant warrant to and ordain the magistrates of set the said Thomas Baird and Alexander Canongate and keepers of their Tolbooth to M'Laren at liberty.