but our inflexible and determined enemies," and who have these twenty-five years condemned the country to incessant and unparalleled slavery; and you are to determine, whether, by propagating such opinions in a speech to an assemblage of 4000 persons, and afterwards introducing them in a pamphlet which was sold and circulated in the country, the panels were not guilty of sedition. I submit to you, that if there is any meaning in words, this was degrading the House of Commons, casting on them the imputation of having enslaved the country for the twentyfive preceding years, and attributing to them all the misery which the country is represented as suffering. There are other passages, into the consideration of which I cannot now enter. I shall just refer to one which has been commented on at great length. The passage is, "And a House of Commons; but the latter is corrupted; it is decayed and worn out; it is not really what it is called, it is not a House of Commons," &c. It is said that there has been language used in parliament, and passages in petitions presented to parliament, stronger and more offensive in their nature, than this founded on by the public prosecutor; and that such petitions were received and laid upon the table of the House of Commons. Passages were read to you to prove this. Upon this part of the subject I must observe, that what is, or is not, tolerated by the Houses of Par There is another passage in the publication to which I think it necessary to call your at-liament, must be foreign to our present discustention. I mean that general statement which which was made as to the proceedings which took place in the year 1793. You will find the passage in page 2, of the indictment. "But let us come nearer home. Look at the year 1793, when the debt amounted to two hundred and eleven millions, and the annual taxation to about eighteen millions; when liberty began to rear her drooping head in the country; when associations were framed from one end of the kingdom to another, composed of men eminent for their talents and virtue, to assert their rights; when a neighbouring nation had just thrown off a yoke which had become intolerable, what did the wise rulers of this country do? Why, they declared war, not only against the French nation, but also against the friends of liberty at home." It has been argued, that the term, "wise rulers," means the ministers for the time, and that their conduct may be discussed without blame. I concur in the observation, that there is no sedition in the censure of administration merely as servants of the crown. But the passage clearly applies, not only to the government of the day, but to the system of government,-to the legislature itself. How can that be doubted, when you observe the concluding words: "Why, they declared war not only against the French nation, but also against the friends of liberty at home." Look, also, at the context. The clear import of it is, that when the country was in the awful situation described by the learned counsel, the government declared war against the liberties of the country. What took place at that time is matter of notoriety, New measures were then necessarily resorted to for the salvation of this country against the attacks of foreign and domestic foes. King, Lords and Commons, united for the purpose of securing the liberties of the country, and their measures are here manifestly represented under these words: "They declared war not only against the French nation, but also against the friends of liberty at home." You will say, in point of fact, whether the ministry or the whole legislature were referred to in this passage, and whether to circulate it was not to propagate sedition throughout the country. sion. They are the best judges of what is There is a part of the defence, however, in Britain in 1817 that we are called on to consider such cases. An allusion was made to the state of the country at the former period, as accounting for, and justifying the prosecutions which then took place, as well as their result. But the learned counsel was afterwards under a necessity of alluding, also, to what has recently happened throughout the empire at large. Extraordinary and strong measures have been adopted, and the enactment of new laws has been rendered necessary by the state of the times. But you are not to be affected by such considerations, and I would not even have alluded to them had they not been alluded to by the counsel. You must lay all considerations of this kind out of your view; and, considering this indictment as brought by his majesty's advocate in the discharge of his duty, you are to determine on the facts, and say whether the panels are guilty or not of sedition. state grievances, and apply for redress, is the undoubted and unalienable right of the subjects of this realm. But I have no difficulty in saying, that if, under the pretence of petitioning, language of a seditious nature be used, those using or publishing it must answer for the consequences. The sacredness of the right which is to be carried into effect, will not sanction the use of unlawful means in the accomplishment of it; and those who come forward upon such occasions must abstain from inflammatory, seditious, or treasonable expressions. It would be a gross abuse of the inviolable right of petitioning, if it afforded an opportunity for every kind of language being uttered, however improper or reprehensible. Such never can be the result of what is due to the sacred right of petitioning; and therefore the learned gentleman admitted that he did not carry his argument so far as to say, that a petition may sanction any thing of an improper nature; but he argued, that if you be satisfied that the object was, to petition the legislature, you will be disposed to make due allowance for the language which may be used in calling attention to grievances. To this extent the observation is well founded. His good sense must have made him perceive that both the law and constitution would sink under any other doctrine. That is the test to which you are to bring the matter now under your consideration. You are to look to the whole facts and whole publication; and you will judge whether, when the people assembled to prepare this petition, there was or was not a blameable excess in the language employed by them, and whether this was not greatly aggravated by the proceedings of the meeting being embodied in a publication, and circulated over the country. I have no wish, gentlemen, to press this case further than the facts appear to warrant. It is your bounden duty to weigh all those expressions which are fairly admitted to be too strong, and even indecent; and it is your province to say, whether these expressions do amount to sedition, have a tendency to bring into contempt the government and legislature, and to stir up the people to disaffection and rebellion. Ifcertainly do most sincerely lament that our attention has been called to this case. This is the first trial for sedition that has occurred for a considerable length of time; and I can assure the learned gentlemen that I had fondly flattered myself, that even at my time of life I should not have again had occasion to apply my mind to the study of this part of the law. I hoped and trusted, that after the clear exposition of the law in 1793, 1794, and 1795, in the different prosecutions which were then found necessary, sanctioned and approved of by the unanimous voice of the country, I should not have been obliged to consider cases of this description. But so it is, that although the situation of this country is so highly prosperous and enviable when compared with the rest of Europe, it is I regret extremely, in a different point of view, that this should be the first case brought before this Court, and from a county with which I am connected by so many ties. It appears to me that both of the prisoners had been men of exemplary conduct and good character. According to the evidence, M'Laren's private character had been very respectable. Nothing but what was right had ever been observed in his conduct. He had never demonstrated any thing like a disposition to tumult or disturbance, but was a volunteer, and had served as such with reputation. The testimony to his general character well deserves your consideration, in judging of the criminal intentions of the parties, and deciding whether their purposes were seditious. With regard to Mr. Baird, again, you will concur with me in deeply lamenting the exhibition of this charge against him, standing as he has done in so fair a situation in society. Many of the witnesses, even for the crown, have given him a high character. The inhabitants of Kilmarnock had some time ago appointed him one of their police commissioners, thus showing their good opinion of him. It appears, that he was a man of respectable moral character, and, in the opinion of the witnesses, attached to the government and to the constitution, though he had a strong opinion of the propriety and necessity of a reform in parliament. It has been strongly affirmed for him, that he never had any thing further in contemplation upon this or any other occasion. With regard to both the prisoners, they were not known to have been ever connected with any other political societies. These are points important for your consideration in judging of the essential question which you are to determine as to the guilt of the prisoners. If, upon a careful consideration of the whole facts in the publication, and the evidence which has been adduced, you shall be of opinion that no sedition or seditious intention has been proved against the prisoners, you will find by your verdict that they are not 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 Lord Justice Clerk.-Gentlemen of the jury, prisoners are charged with sedition and with no who is your chancellor ? 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 M'Laren 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. is an answer to the major, and not to the minor proposition. Logical accuracy is always 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 ir 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 to a court of equity. The verdict, in finding the prisoners guilty of the crimes libelled, has found 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 case. 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. Lord Hermand.-I remember in a trial at Ayr, of one Lowrie, on a charge of theft and reset of theft, the jury found the panel guilty | nutes should not be garbled. Is not that eviof the crime libelled. I pleaded that the dence that these were the words uttered in the verdict was void, as being uncertain, at least speech? But it is unnecessary to go through that the mitior poena should be inflicted. Lord the evidence. It appears to me, that it was Justice Clerk Miller adopted the latter alter- not the ministers of the day, but the constitunative, and imposed an arbitrary punishment. tion that was attacked. But I need not go A similar circumstance occurred in a question into that. All that remains for us is, to conbefore the Court of Admiralty, about a wreck sider the amount of the punishment to be inon the coast of Orkney, flicted 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 In this case the word crimes is not improper. Sedition is the general character of the charge; but there are two species of sedition libelled one the making a speech, another the publish-punishment that will meet my wish and that ing a book. 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 2001., 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 infinite 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 proposedthat 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 resembled 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 further observe, that while I concur most corwho delivered his sentiments. I shall only dially 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, notwithstand ing 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, |