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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 af words, and to aggravate slips of temper or of tongue into the crimes of sedition and treason. If, on account of some rash or careless expression at public meetings, people are to be punished as guilty of sedition, there is an end to all freedom in examining the measures of Government. The public expectation is alive to the result of the first of these trials; and I say it will be no honour, and no glory to you, in such a case, to set the first example of finding a verdict which would subject people to punishment in the circumstances of these pannels. Even if you think that the crime is doubtful, I trust you will not be disposed to lend yourselves to the over-zeal of his Majesty's professional advisers in this part of the kingdom. I say, I trust you will not shew a disposition to follow, where the keen and jealous eyes of
persons in authority may spy out matters of offence ; and that Scotchmen will not be forward to construe into guilt those excesses of speech into which they know that the fervid 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.
Gentlemen, I have exhausted you and myself, -- but I have one word more to say. This is a case above all other cases that is fit for the decision of a Jury,ma 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 ree garded 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 ap. pear 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 Fo. reigners look, in questions with the Crown, when, as head of the State, it demands punishment 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.
If this question then is left to you, and to you only, I am sure you will not easily take it for granted that the pannels at the bar were actuated by seditious motives. You will judge, whether in the publication of this foolish, intemperate and absurd book, there was an intention to excite disorder and commotion in the country, and that in this conduct my client was blind to his own interest, and to the evil consequences to
The essence of the crime, I can never too often repeat, consists in the intention ; and in judging of this you will take all the circumstances and all the acts of the parties into your view. In a season of great distress, one single meeting was held for petitioning the Legislature,-a pur. pose which redeems every thing that might have been amiss in their proceedings. Nothing but a petition to Parliament was, in fact, the result of the meeting, -and 400 copies only of these foolish speeches were printed. No steps were taken to promote disorder, but the most entire tranquillity then and afterwards prevailed. When I think of these things, Gentlemen, I can have no doubt at all of the issue of this trial. You cannot but perceive that the pannels have not been proved guilty of sedition ; for they have not been proved to have said or done any thing wickedly and feloniously, or for the purpose of exciting tumult and disorder in the country. Their
general conduct and character render such an imputation inthe highest degree improbable; and the particular facts which have been proved are so far from supporting it, that, when taken altogether, they are obviously inconsistent with its truth,
The LORD JUSTICE-CLERK, at eleven o'clock, addressed the Jury in the following manner...
Gentlemen of the Jury,-Although you have heard from the learned Counsel who has just now addressed you, with
infinite ability, on the part of one of the pannels, that this is a case more fitted for the particular consideration and final decision of a Jury than of the Court, and that here the Court has less concern, and less to do, than in any other species of trial; I am much afraid that, in the view which I entertain of the duty incumbent on me on this occasion, I shall be under the indispensable necessity of still detaining you for some portion of time, notwithstanding the fatiguing duty you have had to perform. In consequence of the alteration of the law relative to proceedings in this Court, it is no longer necessary to take down the evidence in writing, but it is still the duty of the presiding Judge to sum up that evidence to the Jury who are to decide upon it; and, notwithstanding what the learned gentleman said, (and I am not disposed to find fault with his remark), I shall state to you for your consideration, the nature of the charge and the evidence exhibited against the prisoners at the bar. But even if I were not enjoined by the positive authority of statute to do so, I should not have hesitated, in such a case as the present, to state to you my view of the evidence and of the law applicable to it. It is your province, indeed, to judge of the whole of the case ; but sitting here as a guardian of the rights and privileges of the people, and bound as I am to administer the law according to the best of my judgment, I have to state to you, clearly and distinctly, the view I have of the law of this case, and then to leave it to you to do your duty, as I shall now endeavour to do mine.
The Indictment exhibited against the prisoners at the bar, contains a general charge of sedition in the major proposis tion ; and in the minor you have the narrative of the facts, in reference to which the Public Prosecutor subsumes, that they are both, or one or other of them, guilty of the crime of sedition, actors or actor, or art and part:
You will have observed, that the evidence which has been laid before you is of a different nature, as it affects the different prisoners. One of them is charged with having delivered, at a meeting held in the neighbourhood of the town oi Kilmarnock, a speech, which the Public Prosecutor states to have been of a seditious nature, containing a number of in flammatory remarks and assertions, calculated to degrade and bring into contempt the Government and Legislature, and to withdraw therefrom the confidence and affections of the
peo. ple, and fill the realm with trouble and dissention, the manuscript of which speech he is charged with having afterwards delivered to a printer, for the purpose of its being printed. And with regard to the other prisoner, it is stated, that he
prepared for the press an account of the proceedings at the meeting, which account contains the speech above referred to, and others also alleged to be of a seditious and inflammatory nature, and that he assisted afterwards in its circulation, by exposing and actually selling it in his own shop.
It will be necessary for you first to consider what is the evidence of the facts as it applies to both and each of these prisoners. After calling your attention to the facts, I shall make some observations on the law of the case; and I shall then desire you, upon these facts and that law, to consider whether there is ground for the conclusion of the Public Prosecutor.
It may save you trouble, to state to you at the beginning the definition of the crime of sedition, as given to us by an authority, which is one of the most respectable with regard to the law that can exist in any country whatever. I do not know that there is any foundation, in point of fact, for the supposition which was mentioned, that the author I allude to had ever been suspected of having any particular bias in giving a view of this department of the law. I never before heard that such a notion existed in the minds of the people. But sure I am, if they who read his book look to the authorities and decisions to which he refers, they will be most decidedly of opinion, that he has expounded the law in the most clear, able, and satisfactory manner. Mr Hume, the author to whom I allude, gives this general description of the crime of sedition *: “ I had formerly, in drawing the line between sedition and leasing-making, a proper occasion to explain the general notion of this offence, and I shall not now attempt any farther to describe it (being of so various and comprehensive a nature), than by saying that it reaches all those practices, whether by deed, word, or writing, or of whatsoever kind, which are suited and intended to disturb the tranquillity of the state, for the purpose of producing public trouble or commotion, and moving his Majesty's subjects to the dislike, resistance, or subversion of the established government and laws, or settled frame and order of things.
“ Under this description would fall a work (such as it has been reserved for the wickedness of the present age to produce), which should teach that all monarchy and hereditary rank, or all clerical dignities and establishments of religion, are an abuse and usurpation, contrary to reason and justice, and unfit to be any longer suffered or continued. Or, though the piece should not set out upon so broad a principle as this, if it argue (in common with the many compositions which have lately been pressed upon the world) that the power of
• Vol. ii. p. 484.