nishment on such as Skirving. I need go no further into details, but shall merely mention that there was real, actual, and palpable sedi tion in that case. My purpose, in alluding to them, is to contrast them with the present case; for even in those times, and under all the deplorable circumstances which I have mentioned, this case would have been viewed very differently front the cases then tried.

In urging this to you, I think I may refer to an authority which cannot be either despised or avoided-I mean the authority of the whole kingdom, of the whole law, of the whole majesty and power of the king, ministers, judges, and legislature of England-of that country which has had the longest experience, of freedom, and has learned most thoroughly by that happy experience how little real danger. there is in the discontents, or even the occa sional violence of a free people. There, it would appear, they are not so easily alarmed. to suppose that the constitution can be brought into hazard by a few intemperate expressions. I quote, therefore, the example of England as it stands at this present moment. Will any one say, that what passed at Kilmarnock will bear any comparison, in point of indecency and indecorum, to what is notoriously passing in England every hour, and under the immediate observation of the judges and of parliament. The orations of Hunt-the publications of Cobbett and others-the meetings in Spafields and Palace-yard, are all, up to this hour, unchecked and unpunished-and are met only by ridicule and precaution. In the Royal Exchange, at the doors of the houses of parliament, at the gates of the palace, publications are openly sold-not 400 copies of dull speeches, but hundreds of thousands of daily and weekly effusions, containing, every one of them, matter far worse than what is found in this publication. I am sure no one can look into them, without being satisfied that they contain strong excitements to discontent, and that their authors are continually working upon the feelings of the country; yet they are still holding forth their doctrines without danger of interference.

The trial of Robertson and Berry* took place at a time far more critical than the present. They were tried for printing and publishing a book entitled The Political Progress of Scot--not so easily frightened at words, or so apt. land, which, as to hurtful tendency, went far beyond the pamphlet now in question. Such and such taxes were said to have been illegally imposed, and the constitution held out as a mere conspiracy of the rich against the poor; yet the punishment inflicted was three months' imprisonment to one of them, and six months to the other. There were worse cases in 1793. In one, I mean that of Morton and Anderson,† it was proved that persons who were members of the society of the Friends of the People had gone into the castle-insisted that several of the soldiers should join the society-and given as a toast, George the third and last, and damnation to all crowned heads; yet, upon a clear verdict of conviction, nine months' imprisonment, only, was inflicted. Two cases occurred in 1802. In one of them, under very gross circumstances, for the man was a soldier, and had said he was sorry the king was not shot, and that he could see his heart's blood on his bayonet, the punishment inflicted was one month's imprisonment, and banishment from Scotland for two years. The other was the case of one Jeffrey (I am sorry that should have been the name), who, for wishing destruction to king, queen, and royal family, suffered three months' imprisonment.

I have quoted these cases to show, that even in times when great rigour was necessary, cases much worse than the present were leniently viewed; and I say, considering that we stand now in very different times, and that the people at Kilmarnock had confessedly no intention of holding conventions composed of delegates from various quarters, or of propagating sedition in any way, but were hungry artisans, who only met on one occasion to petition for something, they knew not what, which they thought would afford them relief, and never harboured any purpose of exciting or rising in rebellion, but continued to prosecute their views by constitutional means; can you conceive, that if the more serious cases which I have been considering received such slight notice, the present case would, even then, have been thought worthy of any punishment at all, or that any thing further should now be done, than sending the panels home a little admonished, and heartily frightened, to be more cautious on any future occasion?

2 How. Mod, St. Tr. 84, 2 How. Mod. St. Tr, 7.

See, then, what is the course, that all the wisdom in council, and policy of government, in that land of freedom have held? What is the course they have pursued with regard to that portion of the people with whom originated any disorder that exists in the country, and the people to whom indeed the disorders are still confined? Notwithstanding the situation of England for the last six months, this is the first and the only trial which the present disturbed state of the country has produced. Really, I should not have expected to find the first trial in this country. They that are whole need not a physician. There has been breaking of frames in many counties in England for eighteen months; and yet his majesty's government have a merciful reluctance, and are slow to call the people to account even for those great excesses while there is any reason to think that they have been produced chiefly by their misery. And with regard to the political commotions in the metropolis, they know that a check to the spirit of freedom ought not to be given without necessity;-that the present tumults have not arisen so much from wickedness of heart, as from the pressure of misery;-and with a paternal solicitude, they look watchfully

genius of their countrymen is so apt to hurry them,-especially when they find that far worse excesses are pardoned in England to the phlegmatic English,-in whom they have far less apology.

I have exhausted you and myelf,—but I have one word more to say. This is a case above all other cases fit for the decision of a jury, -a case in which you can expect but little assistance from the Court, and in which, I will venture to say, you ought to receive no impression from that quarter, but judge and determine for yourselves. The great use of a jury is, not to determine questions of evidence, and to weigh opposite probabilities in a complicated proof. Its high and its main use is, to enter into the feelings of the party accused, and instead of entertaining the stern notions of fixed and inflexible duty which must adhere to the minds of judges who administer inflexible law, to be moved by the particular circumstances of every particular case-to be touched with a nearer sense of human infirmities, and to temper and soften the law itself in its application to individuals. It is on this account alone, I believe, that in foreign lands the privilege of jury-trial as existing in this country is regarded as so valuable. And certainly its value has always been held chiefly apparent in trials for alleged political offences, with regard to which it is the presumption of the law itself, that judges might be apt to identify themselves with the crown, as they belong to the aristocratical part of society, and to those great establishments which appear to be peculiarly threatened when sedition and public disturbance are excited. Whether there is any reason for this distrust is not now the question; and in this Court I am perfectly assured that we have no reason whatever, to doubt the impartiality of the Bench. But it is not to them that the country looks,-that all Britons, and all Foreigners look, in questions with the crown, when as head of the state, it demands purishment on any of its subjects for alleged want of obedience.-In all such cases, the friends of liberty and justice look with pride and with confidence to the right that a man has to be tried by his peers.

and compassionately upon the people as if they were in the delirium of a fever; and they spare them as deluded and mistaken only for a season. That is the tone and temper in which the equal justice of England is dealt, and sure I am it is admirable, when compared with that which would lay every newspaper open to prosecution, and stifle the voice of freedom. Nothing but extreme necessity and immediate danger can justify the rearing up state prosecutions. According to the example of England, we should be slow to punish the people. In England, much more has taken place to justify prosecutions than has yet occurred in Scotland. Looking at home where no riots, and no rebellion exist, and where a great mass of misery has been more quietly and more soberly borne than in the sister kingdom, we should not be rash or hasty to stretch out the hand of vengeance against those whose case calls rather for compassion than punishment. Believe me, gentlemen, it will be no honour, and no glory to us, to set the example of severity on such an occasion; nor will it redound in any way to the credit of our law or our juries, that we were more sharp-sighted and jealous than our neighbours in weighing the rash words of our fellow citizens, at a time when they were suffering the extremity of distress. At such a season, expressions will be used which it is impossible to justify; and offences will be committed, which will again disappear in seasons of prosperity. A vigilant police, in such a case, is all that is wanted. Absurd and improper expressions at meetings for petitioning parliament hardly deserve notice; and a facility of obtaining convictions for government on trials for such offences is universally recognised as a mark of public servility and degradation. It is always most easy for the worst governments to obtain such convictions, and from the basest people. Affection to the constitution is planted substantially in the hearts of the subjects of Great Britain; and it is only those governments which are doubtful of their own popularity, that are given to torture and catch at words, and to aggravate slips of temper or of tongues into the crimes of sedition and treason. If, on account of some 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 iesty'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 pur matters of offence; and that Scotsmen will not pose which redeems every thing that might be forward to construe into guilt those excesses have been amiss in their proceedings. 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 only of these foolish speeches were printed. subsumes, that they are both, or one or other No steps were taken to promote disorder, but of them, guilty of the crime of sedition, actors the most entire tranquillity then and after- or actor, or art and part. wards prevailed.

not to take half a sentence of a speech or pub fication, 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 genéral 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 mind's 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 determined 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 Oli-, garchy, who pretend to be our guardians and representatives, while in fact, they are nothing

K

Lord Reston, vide p. 16.