[76 meanest of the people, from ancient times. | cannot be used without expressing discontent, Since the Revolution it has never been questi-and thereby communicating it among the peooned; and immediately before that glorious ple, and possibly raising it, where it had preevent, it was attacked only to enable a tyran-viously no existence, may be legally (and nical government to subvert the public liberty. without any crime, or the fear of criminal proBut the attack was repelled even in the worst secutions) used in every case whatever, even of times; and the first act of the government though the use of it should in some respects of King William and Queen Mary was to have a bad tendency; the utility, and even neconfirm the right of petitioning, as a franchise cessity of presenting the right, counterbalancof which the people could not be deprived. ing the mischiefs which may be occasioned by It has ever since been considered as a right the seditious or discontented spirit which may unalterably fixed by the fundamental laws of he raised by it. the state; and, accordingly, though the exercise of it is supposed to be sometimes unpleasant to the government, yet no administration, and neither House of Parliament, has hitherto thought proper even to discourage the people in the exercise of their right of petitioning. How many hundreds, or rather thousands, of petitions have been presented to the different branches of the legislature within these few years, representing as grievances things which are not acknowledged to be such! and yet the petitions, as coming from the people in the exercise of their right, have been graciously received by those to whom they were addressed. And so important is the right of petitioning, that every other right in the people has been supposed to depend upon it, inasmuch as the people, if deprived of that right, would be in danger of losing the protection necessary to defend them in their other rights. It is obvious that a fair communication from the people of their grievances and discontents to the legislature, which has the power, and whose duty it is to protect them, cannot be sedition, if they have a right to make such communication. If the people should petition parliament without having the right by law to do so, these petitions might be, and in almost every case would be seditious and dangerous, in raising or increasing discontents and disturbances; because every complaint of a public grievance has a tendency to create a public discontent, and this is illegal and seditious in every case where the law does not allow it. For the same reason, any violent complaint of public grievances may be seditious or illegal, where it is not addressed to persons having legal authority to take it into consideration and give relief. But it would be a solecism to say, that a petition to the King or to either House of Parliament, stating grievances, and praying for redress is seditious, because, 1st, it is allowed by law; 2dly, the persons addressed have an authority to take the complaint into consideration and give relief. Petitioning is indeed considered as a means of removing discontents and preventing disturbances, not as a means of raising them; and this may be true in some cases, though it is not always so, and we have frequently seen a ferment of discontent much increased by numerous meetings of the people, called for the purpose of petitioning. But still the legal right of petitioning is unquestionable; and it must be supposed that this right, though it But it must be plain, that if the people have a right to state the grievances in petitions for redress of grievances to the different branches of the legislature, it follows as a necessary consequence that they have a right to state these grievances in the plainest language, and even in what is commonly considered to be strong or coarse language in the description of public abuses, if they do not in their petitions violate that respect that is due to the legislature: under that restriction, they may assert in their petitions that there are the grossest abuses, even in the legislature itself. And you need not be told, that even petitions of that kind are occasionally sent from all quarters of the country, when discontents prevail among the people. A stranger to the peculiarities of the British Government might think it odd that petitions of this class, containing inferences of a nature apparently so irreverent, not only indicating an extreme degree of discontent in the petitioners, but directly tending to raise and disseminate the same kind of discontent through the whole of the kingdom, should be tolerated, especially where it is plainly the opinion, not only of the different branches of the legislature, but also the opinion of the more sensible part of the community, that the petitions are very illfounded in their representations of grievances, and demand, by way of redress, new public measures or arrangements, which would not only be useless, but dangerous and even calamitous. Such considerations, however, have no influence, or very little influence, in the question, whether the people have the right to present their petitions, and whether, when offered, the petitions ought to be received. On the contrary, it has long been held by the legislature, that, as the people have the right to petition for redress of grievances, so they have the right to state what they consider to be their grievances, whether they are really grievances that ought to be redressed or not. The general rule is, that however unreasonable, or unfit to be granted the prayers of the people in their petitions may be, it is not unfit to receive the petitions, and the people have a right to present them, a right that is unalie nable. But further, if the right of petitioning belongs to the people, they must of necessity have the right of deliberation upon the subject of their petitions, to consult with each other at public meetings, to be advised by those The argument of the public prosecutor, and the evidence adduced, will apply only to the second case supposed, that the speakers at a meeting bona fide assembled for petitioning, had gone beyond their bounds, and deviated into sedition. But has this been made out against Mr. M'Laren? His short speech, though coarse, was suitable to the occasion, as an exhortation to petitioning, and nothing else. who are able to advise them, or think themselves able, upon the various points which may occur in considering what are grievances, and what are not; and if there are grievances, what are the remedies that ought to be proposed or prayed for in their petitions. With regard to the important claims which may be made in petitions to the legislature, every man necessarily must have a right to meet with his fellows, either in small or in great numbers, and to discuss the matter with them. One man may think that annual parliaments are necessary; another that they would be hurtful or impracticable. On this trial, it is not necessary for us to consider whether annual parliaments and universal suffrage are good or bad; and, on this occasion, I have nothing to do with these questions. But I say that it is not unlawful to petition for either. And generally, whatever the grievance, or fancied grievance is, it may lawfully be the subject of a petition to the legislature; and for the same reason it may lawfully be the subject of deliberation and discussion, even in public meetings held for the purpose of petitioning. You will observe, that there can be no limits to this right of petitioning, and previously deliberating; for when it is limited the right is gone. The right is to present unreasonable as well as reasonable petitions. Or if unreasonable petitioningwere unlawful, the legislature alone is the judge of what is reasonable or unreasonable in petitions. If the right of petitioning could be restrained by the courts of law, there would be an end of the right of petitioning, a fundamental law of this monarchy, a law, the palladium of our other rights. We were told, indeed, that this case is similar to that of Fyshe Palmer, who many years ago, was tried for sedition, found guilty, and sentenced to transportation. But this is a total mistake. The case before you is very different from that of Fyshe Palmer, and from all the other cases which have hitherto been tried before the Court of Justiciary. It has been reserved for the present Lord Advocate to bring such a case as the present to trial, in which, if the verdict find the panels guilty of sedition, the right of petitioning, hitherto unchallenged, seems to be attacked almost in direct terms. The case of Fyshe Palmer was that of a seditious libel, an inflammatory hand-bill, containing seditious language, without any proposal to petition Parliament. We were told that this case of Fyshe Palmer was defended on the same grounds that were stated in defence at the beginning of this trial; yet the lord advocate declined to meet that defence particularly, and bear it down by the triumphant authority of Palmer's case There was no resemblance between that case and the present. Fyshe Palmer recommended an appeal, on the subject of grievances, not to the legislature, but to a mob, the scum of the earth in the neighbourhood of Dundee,-to the soverign authority of the multitude. The deOn the occasion of which we have heard so fence in that case was disregarded,—but what much, when the people in and about Kilmar- was it? It was said, that in this free governnock met to consider whether they should send ment it is necessary that the press should be addresses to the legislature on the subject of free. It was said that the people must have their grievances, various speeches were made, freedom to attack public men, and must be enand we are told by the prosecutor, that these titled to publish, not treason, not sedition, in speeches, and in particular the speech of a palpable form, but their thoughts in a free M'Laren, were seditious. In regard to the and independent manner. It was added, that question, whether or not his speech was sedi- Mr. Fyshe Palmer was not very sound in his tious, he pleads that the right of petitioning mind. These were the defences for him. necessarily implies the right of previous dis- You will perhaps be surprised when I tell you, cussion. If this be true, apply it to the case that my Lord Abercromby, who tried the case, before you. At such a meeting a speech may held, in his speech to the Jury, that if a petipossibly be seditious, where it appears either tion to Parliament had been in view, the libel that the meeting was called, not for its pro- of which Fyshe Palmer was found guilty would fessed object of petitioning Parliament, but not have been of so aggravated a description, merely to afford opportunities to make sediti--would perhaps not have been considered a ous speeches; or that though the meeting libel at all. "Much (he remarked) has been bona fide assembled for petitioning, the speech said of the purity of the intentions of the sowent beyond its proper bounds, and was se- ciety; it is said they had nothing in view but ditious in statements not justified by the oc- moderate reform. But, Gentlemen, you will casion. As to the first of these cases, there is consider how far that is consistent, either with not even a pretence for denying that the meet- the tenor of the address itself, or with what is ing in question was bona fide called for the sworn to by Mealmaker, who drew the first purpose of framing petitions to Parliament. draught of it, and who swears expressly, that I refer to all the evidence which you have at that time he had no second petition in heard. It was a meeting collected for that his contemplation and that what was afterpurpose, and for no other, nor was any further wards to be done would have depended purpose in view. upon circumstances. I much fear that here Mealmaker is telling the truth, and that if they had not been attended to, the conduct of this society would not have proved so pure as their intentions are said to have been."** In that case, you will observe, that a seditious libel was dispersed over the country without any consequence being contemplated but that of inflaming the minds of the multitude. On the other hand, we have been at pains to shew, that the panels in this case were quiet orderly | persons, not concerned with any seditious societies; not connected with any political parties, only feeling distress, thinking they had grievances to complain of, and that they could better their situations by petitioning parliament. They met together in the most orderly manner, deliberated as it is usual to do in public meetings, prepared resolutions,-prepared a petition, and signed it, and that petition, though couched in strong terms, was presented to the Houses of Parliament, considered, received, and laid on their tables. Is the right of petitioning, then, to be interrupted in this extraordina rymanner, by bringing the petitioners into the Court of Justiciary? Recollet that this was a meeting for considering the propriety of petitioning the legislature, and that the meeting would have been alto gether nugatory unless the persons then met had been allowed to state their opinions to one another. In the first page of this indictment, the panel is charged with having wickedly and feloniously delivered "a speech containing a number of seditious and inflammatory remarks and assertions, calculated to degrade and bring into contempt the Government and legislature, and to withdraw there from the confidence and affections of the people, and to fill the realm with trouble and dissention." Gentlemen, wherever the people are exposed to grievances they necessarily must, when they meet to consider the means of redress, express their sense of these grievances; and I ask whether it be possible to state public grievances, especially grievances arising from such a source as overtaxation, without in some way or other reflecting on the Government. In the exercise of our right of petitioning against grievances, these grievances must be mentioned; and it is impossible to mention them, or even to allude to them, without bringing the Government into discredit. For example, let a petition be presented against over-taxation, whatever were the causes of the evil,-wars just or unjust, unavoidable misfortunes, or misconduct in public affairs,—it is lawful to state the grievance. But can it be stated without affecting more or less, or attempting to affect the public opinion as to the merits or demerits of administration? Every public statement respecting public affairs has that tendency. But are the people to be interrupted on such grounds, in the exercise of their just rights. It is of the essence of their right to complain Fyshe Palmer's case 2 How. Mod. St. Tr. 371. of grievances, and therefore I apprehend you must disregard entirely those general expressions in the indictment, charging M'Laren's speech as tending to bring the Government into contempt. The petitioners felt grievances;-they prepared petitions, and it is im possible to state a public grievance without throwing blame upon the Government. I do not mean to examine the question, whether there really was any blame attachable to Government; for it is the same thing in this case whether the petitioners were right or wrong in their statement. My defence is, that they were in the fair prosecution of legal views. Suppose no words to have been uttered but what would, in other circumstances, have been considered seditious, their having had a right object in view is a good defence. But every sort of obloquy has been thrown on the petitioners, without any notice of the lawful object they had in view, as if their object were to be laid entirely out of consideration. The legality of the object, and the situation in which the speeches were uttered, are the most important circumstances of the case. Every thing else is of a trivial and subordinate nature. But let us see what the panel is alleged to have said. No positive evidence has been adduced to prove any part of his speech, except a few words at the end of the passage quoted in the indictment, and, so far as I have observed, you have only the uncertain evidence of one person to these words. I shall remark upon the words in the indictment. "That our sufferings are insupportable, is demonstrated to the world." I do not say whether their sufferings were insupportable or not; but they appear to have been severe, and the people were met for the purpose of considering them, and to join in petitioning for relief. Here I presume is no sedition. "And that they are neither temporary, nor occasioned by transition from war to peace, is palpable to all, though all have not the courage to avow it." I do not say that proposition is palpable to every body. Some are disposed to think that the calamity has been occasioned in consequence of the sudden transition from war to peace, and some dispute that proposition. Some are of opinion, that if we had continued the war, at an expense of a hundred millions a year, we should have infallibly secured the national prosperity and greatness. I shall not attempt to settle these points, nor is that necessary to the present argument, and I beg leave to protest against the idea that I give any opinion upon them at all. Perhaps Mr. M'Laren may include me in his censure for my want of courage in not avowing my opinion. "The fact is we are ruled by men only solicitous for their own aggrandizement; and they care no further for the great body of the people, than they are subservient to their own accursed purposes. If you are convinced of this, my countrymen, I would therefore put the question, are you degenerate enough to bear it? Shall we, whose forefathers set limits to the all grasping power of Rome; shall we, whose forefathers, at the never-to-be-forgotten field of Bannockburn, told the mighty Edward, at the head of the most mighty army ever trod on Britain's soil, "Hitherto shalt thou come, and no further;" shall we, I say, whose forefathers defied the efforts of foreign tyranny to enslave our beloved country, meanly permit, in our day, without a murmur, a base Oligarchy to feed their filthy vermin on our vitals, and rule us as they will? No, my countrymen." A commentary was made on this passage though it is not proved that the panel ever spoke it. The prosecutor takes it for granted, without evidence, that the words were spoken. I am, therefore, not under the necessity of defending these words. But are they in reality so culpable? Are they seditious? They are mere words of course, in expressing those pubhe grievances to which they refer. Every child knows that they are the common and hackneyed terms used by petitioners for public reform, and (excepting one or two allusions, in which there is evidently no sedition), if they are not tame and feeble, they are at least neither seditious nor inflammatory. Every word applies to the professed object of the meeting in petitioning, and to no other object. The prosecutor applies some of the words to the king, but this is a misconstruction quite unworthy of my lord advocate. Ministers, and the possessors of borough interest, are the vile Oligarchy, who are said to feed their filthy vermin on our vitals, and rule us as they will, and this attack was justifiable in the way it was made. What would avail the right of petitioning, if there was no right to petition against his majesty's ministers and their partisans? Ministers may be impeached in parliament for their public conduct, and they may be complained of by the people in their petitions. Are petitions to parliament against ministers to be punished as sedition? What have we here? The opinion of the panel that the ministers have not acted in an honest way, or as ministers ought to do. The opinion is expressed a little strongly, but it does not go beyond legal bounds. The petition was afterwards laid before parliament, and was received with respect. Now the question before you is not, whether the ministers are culpable or not-not whether lord Castle reagh or Mr. Vansittart might bring an action for a libel or defamation-but whether there is any sedition in this speech. I ask you, whether there is any sedition in complaining of these ministers? Sedition is an attack on the sovereign of the state-an attack on the government, not on the ministers of the government. You may attack the latter in any way, without being guilty of sedition. But farther, as to the passage about the Oligarchy. It is generally understood that a few persons, not exceeding 300, are possessed of an influence in the House of Commons that is very pernicious to the state. This is the VOL. XXXI. Oligarchy, the government of a few by unconstitutional influence, alluded to in the panel's speech. Is it sedition to take notice, even by allusion, of such a public grievance? Is this sedition? Against whom is it sedition? against the King? against the Lords? against the Commons? against any branch of the legis lature, or against the legislature taken as a whole? It is sedition against no person or legal authority whatever. It is, indeed, directed against the Oligarchy itself, which, in the opinion of the petitioners, is the worst enemy of the King, Lords and Commons. The King, Lords and Commons ought to be independent; and, if an unconstitutional influence rules over them, is it sedition to complain of that influence? Every friend to the constitution will complain of it, if he supposes it to exist. I apprehend there is nothing in this part of the charge; and while M'Laren denies having used these expressions about our rulers, I say there is no sedition in them. I would say so, even if the words had been used where no petition to the legislature was in contemplation. But, considering that the meeting was called for that purpose, nothing can be more unquestionable than that such language was not seditious. I come now to the last of the words quoted in the indictment, and I hope to satisfy you that there is nothing seditious to be found in them. Allow me here to remind you of M'Laren's situation when he made this speech. It has been proved that the task of opening the meeting was imposed on him, contrary to his inclination, and came upon him rather unexpectedly. It was indeed proposed to him eight days before the meeting, but he was unwilling to undertake it, and immediately before the meeting he pressed Mr. Samson to take the business off his hands. An hour before the meeting Mr. M'Laren was again urged to open the business; and being in some measure compelled to it, he retired for a very short time, and made some notes of his short address to the meeting. You will see in the whole proceeding the most evident marks of haste. It is not proved that the last sentence was written in his notes. On the contrary, it was not written. He was placed on what is called the hustings, and delivered his speech during a storm of wind, rain and hail; from the noise of which, and particularly from the rattling of the hail on umbrellas, it was almost impossible · to hear what he said. Besides the words contained in his notes, part of which he spoke, and part of which he omitted, he spoke other words which were not in his notes. What these words were is uncertain, as they could not be perfectly heard. A single witness told you he heard and recollected them, though he could not recollect any other words of the panel's speech. There is no great reason to rely on the recollection of the witness, though there is much reason to presume that the words had not the meaning given to them by the public prosecutor. The words in G where there is an uncertainty what the very words were, the most favourable interpretation must be given to them. But, in the worst view of the words, they im port merely that in an extreme case, which could not happen, allegiance would not be due, and such an alternative does not import se the indictment are, "should he be so infatuated as to turn a deaf ear to their just petition, he has forfeited their allegiance. Yes, my fellowtownsmen, in such a case, to hell with our allegiance." But the passage is in different words according to the evidence of Mr. Finnie, whose recollection of words, delivered in the midst of hail and wind, and the noise of um-dition. If the words were imprudent, they brellas, while nobody else could hear what M'Laren was saying, is the only evidence for the prosecutor of the sedition. Another witness said there was something in the speech about hell and allegiance, but he could give no intelligible account of the passage. Now, is it probable that the panel should have so expressed himself, or is it proved that he used the words imputed to him? You see the rest of the speech does not appear in the same mutilated form with the passage given by Mr. Finnie. There is reason to believe, there fore, that the passage so mutilated is not the passage delivered by M'Laren. And yet you are called upon to rely implicitly upon Finnie, a single witness, to the words of a speech, though there was such a noise when it was delivered, that persons near the orator could not hear him: And this part of M'Laren's speech is said to have been seditious. Gentlemen, you must always bear in mind the occasion. No other passage of the speech was seditious. M'Laren was recommending a petition to the Prince Regent. He was speaking of his royal highness in the most respectful way, and in a warm strain of loyalty. "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." Here is the fondest expectation of being listened to. But it is natural to mingle, with the kindest and most dutiful sentiments, the severity of doctrine and reasoning, and, on this occasion, it is possible that the rigour of our constitutional law for extreme cases may have suddenly occurred to the mind of the panel. We all know that our constitutional rights and duties go hand in hand. This has been stated in every possible form in which a proposition of the kind can be stated. At the Revolution, the Lords and Commons held James to have abdicated the throne, merely because he left the country, and the illustrious house of Hanover was at last established, because James had failed in the duties he owed to his subjects, Again, in Scotland, it was not held that James had abdicated, but that he had forfeited the throne in consequence of his proceedings. Speculations on the subject, indeed, are delicate, and ought not to be much indulged in. But what was more natural than for M'Laren to urge the propriety of petitioning, by stating that the petition would of course be received, and that if the regent did not regard the cries of all his people, he would forfeit their allegiance? M'Laren did not say it was the duty of the Prince Regent to listen, right or wrong, to the petition then proposed. In this way the whole passage is not so unreasonable; and were not seditious. They might indeed have been without a vindication, if they had been used at a public meeting where no such words were warranted by the occasion, and where the meeting was not for the purpose of petitioning parliament. But consider the time when the words were used. The recommendation of my lord advocate to this effect was quite correct, and I desire you to keep in mind that there was a petition at the time under consideration, and that expressions might then be more allowable than at another time. The sacred right of petitioning is the bulwark of the right of free discussion. Discussion may be allowed preparatory to a petition, that would not be endured at any other time. Discussion is necessary on all such occasions. Free words may on these occasions be used when speaking of ministers, and generally of public men, as well as of public measures. Are not these propositions self-evident? Supposing it were asked, whether any of you have a right to write a letter to a correspondent, and send it by the post. The answer would be, you have a right to do so; there is no law against it. But what if you have no right to use pen, ink, and paper; no right to lift the pen, to put it in the inkholder, or apply it to the paper? These acts have the same relation to writing a letter, that the right of canvassing what are grievances has to the right of petitioning. You have the right of petitioning, which includes the right of meeting and canvassing the subject of your petition. Thus the right of discussion is presupposed in the right of petition. As to the language that is legal and warrantable in petitioning and previously discussing the mode of petition, it is well known that parliament may be approached with language as strong as any part of this pamphlet, and certainly stronger than any part of the speech of the panel. As evidence of this, take the votes of the House of Commons, and you will find more violent and bitter expressions of grievances, than any in this publication. I may read one or two of these petitions, which have been appointed by the House to lie on the table, and which the House would not have thought itself bound to receive, if they had considered the language as improper in a petition to parliament. I hope Mr. Grant will: be allowed to read them for me. Mr. Grant. This is an extract of a petition from Bristol, presented to the House of Commons on the 29th January 1817 [Reads from the Votes]. "That no man of sincerity will affect to believe that such a squandering of the resources of the country for such purposes, and |