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nishment op such as Skirving. I need go no 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 whole 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 even in those times, and under all judges, and legislature of England—of that the deplorable cireumstances 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 froni 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 not 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 Exchange, 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—not 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 bad 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 bave been the name), who, for wishing de they are still holding forth their doctrines struction to king, queen, and royal family, without danger of interference. suffered three months' imprisonment,
See, then, what is the course, that all the wise 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- Eugland 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 only met on one 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 many counties in England for eighteen their views by constitutional means; can you months; and yet his majesty's government have conceive, that if the inore 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 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 ajustice 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 freedom. 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 impresbe 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 Scotland. Looking to determine questions of evidence, and to at home where no riots, and no rebellion exist, weigh opposite probabilities in a complicated and where a great mass of misery has been more proof. Its 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 applicaor 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 regarwhen 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 establishfor petitioning parliament bardly 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 countion 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 governments which are of the state, it 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, intrials; and I say it will be no honour, and no 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 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, conyo lend yourselves to the over-zeal of his ma- 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 seadisposition 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 purmatters 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. Noof 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 oply 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 SUMMING-UP.
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 necessary 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 his 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 par-" authority of statute to do so, I should not ticular bias in giving a view of uais 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 applicahle to it. It is your pro- ple. Bnt sure 1 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 de 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 fure 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, 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. ii. p. 484.
- he be so infatuated as to turn a deaf ear to ! Having stated to you what appears to me to their just petition, he has forfeited that allegi- be the result of the evidence in these particulars ance ; yes, my fellow lownsmen, in such a as to the facts of delivering and publishing the case, to with their allegiance;" you will speeches complained of in this indictment, keep in view, that M‘Laren gave in the there still remains a much more important manuscript of his speech to be printed, and question for your decision, which it is your was present when Baird inserted these words; entire province to decide on, but with respect and you will decide for yourselves, whether to whieh, it is my duty to submit a few obserthere is any doubt that he permitted that, vations to you. You have already had an opwhich he took no steps to prevent. But again portunity of hearing, that on the face of this inif you take into view the words as given by a dictmeni, as the matters are there disclosed respectable witness, and confirmed, to a cer- and undertaken to be proved, the court contain extent, by another witness, and admitted sidered the charge relevant, and fit to be subby the prisoner himself to Mr. Johnstone, you mitted to a jury; and now that the evidence will consider whether there is any rational has been led, and we have the whole circumground for doubt as to the import of the stances investigated, I have no difficulty in passage of the speech which MʻLaren delivered stating, that notwithstanding all that I have having beeen sufficiently established.
listened to in the very learned, able, and inNext, with regard to Mr. Baird, the case is genious criticisms, both on M'Laren's speech of a different description as to the facts, for and on the passages of the publication which he is not alleged to have made any speech at have been founded on, I am still of opinion all. · The charge against him is, that he was that there is matter of a seditious description. one of those who priuted and published a It would be most improper, however, on my statement of those proceedings, containing not part to hold out to you that I think this a case only M'Laren's speech, but those of others of sedition of a most atrocious or aggravated which are founded on as being of a seditious description. That would be an erroneous imand inflammatory nature. It does appear in pression. I have to observe, also, that I am evidence that Mr. Baird was at meetings of the far from thinking it proper, in the case you are committee, both before and after the public now trying, to refer to other cases which are meeting; and when the decision was taken as not parallel to it in the facts. But in reference to printing and publishing the proceedings he to the prisoners at the bar, it does appear to was present. It has no doubt been proved, me, and to the rest of the judges, to be clear, on his part, that he was one of those who did that there is on the face of the speech of oppose in the committee the printing of the M‘Laren, and in the different passages which passage in M'Laren's speech, but that his have been referred to, as well as in the context objection was overruled ; and had Mr. Baird's of the publication, matter of a seditious nature. case rested here, and had the public prosecu- How far that seditious matter has existence in tor endeavoured to implicate him in the pub- point of fact, or is affected by the circumstances lication, by his merely being present at the in evidence, or the remarks made on it, you, public meeting, it would have been difficult however are to decide. In judging of this, indeed to have persuaded any jury to have you are called upon to look to the intention found a verdict against him. But his conduct imputed to the parties; and I concur with the was different; for, after his objection had learned gentleman in thinking, that it is the been overruled, he superintended the publi- part of the public prosecutor to establish the cation; and it is fully proved that he went criminal tendency of this alleged seditious twice or three times to the printing-office with publication. Criminal intention, or that the Mr. Andrew, who was employed in revising facts were committed wickedly and feloniously the proof sheets, and that, upon one of these as charged, constitutes the very essence of the occasions he suggested the correction of a crime. You must be satisfied, that the programmatical error. This evidence will proceeding was not only seditious in itself, but bably be sufficient to satisfy you that Mr. Baird that there was the criminal purpose in the did take a concern in the printing and pub- speeches and publication which is charged in lishing of what is complained of, even after he the indictment. I do apprehend, that when a stated objections to one passage. His con- jury is called upon to decide upon
the import duct, therefore, at this period, makes him re- of a speech or of a publication, it is their sponsible, even if the evidence stopt there; bounden duty to put upon that speech and but has it not also appeared in evidence, that publication a fair and even a mild interpreCrawford holds him responsible for the payment | tation. They are not called upon to stretch of the printer's account? and were not many co- matters, or to endeavour to find out a farpies of the pamphlet sold at his shop? Mr.Finnie fetched meaning in words. If words are of swore that Mr. Baird got some copies from him, an ambiguous nature, the mildest construction and expressed surprise that the witness had of them is to be adopted; but, on the other not got quit of all his copies. Mr. Baird is not hand, reason requires that a sound, plain, hoa bookseller, but a grocer, and disposed of the nest meaning be given to language. It is not copies in his shop; one of which copies it disputed by the public prosecutor (for he himhas been proved was there bought by Hugh self, in some measure, followed such a course), Wilson.
that it is necessary to look to the context, and not to take half a sentence of a speech or pub-, to the petitions of the people at large, or to the fication, but to give fair play to the accused, petition of these particular persons. The term, by referring to what precedes' and to what just petition, no doubt, is employed. But follows. It is your business to take the docu- who is to judge of the justice of the petition ? ments into your own hands, and looking to the It would appear from all that passed that the whole context to draw the conclusion whether petitioners themselves were the judges. What there is sedition or not.
was said to be the alternative if this petition It is hardly possible at this late hour to go was refused ?—“To hell with allegiance," or through every one of the passages which are our allegiance." I ask of you, as sensible and founded on, and far less through the whole reasonable men, whether this language does' publication; but I beg leave to say, in re- not indicate that the Speaker had formed a ference to the speech of M‘Laren, that there do purpose of throwing off his allegiance, in the appear to me a most improper style and tone event contemplated of a rejection of the pein the whole of it. He refers to transactions titions in question? He was to array himself of a very distant period, of which no sober- against his sovereign, not in the ludicrous minded man would wish to revire or obtrude manner that Mr. Jeffrey suggested, but in a the recollection, as affording any rule of con- very different and much more serious manner; , duct for the people of this country, in reference and I boldly affirm, that if a single step had to their present situation. From the beginning been taken, by following up the language then of the speech, in which complaints are made employed by any overt act, it would not have of the oppressions under which the country is been sedition, but plain and palpable treason. labouring, to the conclusion, in which reference Whether the language that was here used, is made to the Prince Regent, there is a ge- which, it has been said, only expresses a very neral style of inflammatory declamation. Nor delicate principle in the constitutional law of was this effusion unpremeditated, for notes of this country, was calculated to excite disconthe speech were prepared by him at an earlier tent, disunion, and public disturbance, is the , or later period before the meeting. Without question for your decision. You will judge, going into particulars, I say there is a tone and whether the words were uttered; you will give tánguage in this speech which are strongly in them fair play in judging of their meaning; . flammatory, and tending to excite in the people and in the interpretation of them you will refer discontent and disaffection against the govern- to the other parts of the speech. In that way, ment and legislature. Of this it is, however, you will satisfy your minds as to the grounds of your province to judge. I have no difficulty the conclusion you may come to, and decide as in saying that the language appears to me not to the intention of the speaker, and the import to be of a description which can be reconciled of the passage. to the single object of petitioning.
You will judge, also, of the meaning of the The passage upon which the most important term “Oligarchy," which occurs in the speech, comments have been made is that with regard and in different parts of this publication : you to the petition to the Prince Regent, and the will consider whether it alludes to any of the consequence of his not listening to the just pe- branches of the legislature, or must be limited , titions of the people. The passage is in these to the persons forming the actual administrawords: “Let us lay our petitions at the foot tion. I coincide with the opinion which was of the throne, where sits our august prince, hinted at by my brother on my right hand * whose gracious nature will incline his ear to particularly when I consider the way and listen to the cries of his people, which he is manner in which the term is explained by bound to do by the laws of the country: But, another speech founded on in the indictment. should he be so infatuated as to turn a deaf ear to “We have these twenty-five years been contheir just petition, he has forfeited their alle- demned to incessant and unparalleled slavery giance. Yes, my fellow-townsmen, in such a by a usurped Oligarchy, who pretend to be our ease, to hell with our allegiance." Take the guardians and representatives, while, in fact, expressions as given either in the publication, they are nothing but our inflexible and deteror as in evidence by the witnesses, and say mined enemies." I think it is impossible, by what is your opinion as to this part of the any interpretation, to suppose that this has respeech.
ference 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 iry 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 speech. You are to consider, then, whether bave heard on the subject, you are to consider, the House of Commons, as now constituted, is whether, notwithstanding the favourable re- meant to be designated by the “usurped Olimarks made in reference to the Prince Regent, garchy, who pretend to be our guardians and which I admit do appear in the first part of the representatives, while in fact, they are nothing pássage in question, the language in the following part be justifiable, as having reference
* Lord Reston, vide p. 16. VOL. XXXIII.