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Lord PITMILLY-Soon after the printed copy of this indictment was put into my hands, I considered it with a view to the question of relevancy; and although the Counsel for the pannels have not disputed the relevancy of the indictment, but reserved to themselves the liberty of making such observations as may appear to them proper after a proof shall have been led, it would have been the province and the duty of this. Court to stop the trial at this stage if it had appeared to us that the indictment is not relevantly laid. The defence has been very properly explained by the Counsel for the pannels; and I shall be happy if they make out that defence, either in exculpation, or in alleviation of the crime charged in this indictment. The only question at present is as to the relevancy of the indictment; and I have no hesitation in saying, that, in my opinion, it is relevant, and that, therefore, the ordinary interlocutor should be pronounced. The major proposition of the indictment chargse sedition in general terms. This is an unexceptionable charge, which has never been objected to, that I know of, but in one case, where the question regarding it was argued, and the objection was repelled. I allude to the case of Sinclair. It is known to every lawyer that sedition is acknowledged to be a crime recognised in the laws of this country. It is a crime, indeed, the trial and punishment of which must be coeval with Government. It is stated that the one pannel made a speech, which contains inflammatory remarks and seditious expressions, and that the other pannel circulated a pamphlet containing the speech and other seditious speeches. Paragraphs of it have been read, and I will not consume time with reading or commenting on any of them at present. No person who reads them can doubt, that the general nature of them is to excite commotion, and to prepare the way for resistance and for overturning the Government. That this is the general nature of the facts charged, no person can doubt. It would also be wasting the time of the Court to read the passages of the luminous commentary by Mr Hume on the crime of sedition, or to refer to the authorities and the precedents which have occurred in this Court. The Counsel for the pannels are correct in stating, that it is the province of the Jury ultimately to determine, not only as to the facts of the utterance and the publication of the expressions mentioned in the libel, but also with regard to the law, whether the expressions are to be held seditious or not. On that point there can be no doubt; and there never was doubt as to it at any period of the history of this Court. The Court, however, in considering of the relevancy, must determine in the first instance, whether the expressions complained of appear to them to be seditious, and to amount to the crime of sedition; and on this subject I cannot entertain the shadow of doubt.
Lord RESTON.--I have no doubt as to the relevancy of the indictment. We have nothing to do at present with the truth of the statements in it. The only question now is, Whether the averments of the Public Prosecutor are put in proper shape and terms in this charge. The Jury will decide not only on the bare facts, but on the legal import of them, and will say whether the pannels are guilty or not of the crime of sedition. I have no doubt of the sufficiency of the averments made by the Public Prosecutor. He has averred circumstances which, if proved, amount to sedition. His averments amount to this, that what was said and published was not only calculated to produce pernicious consequences affecting the Government and Legislature, but must have been meant for seditious purposes. The indictment states that the purpose of the pannels was wicked and felonious. I consider that the speech said to have been delivered by one of the pannels is seditious in all its parts, and tends to excite discontent in the country. It was delivered in the open air, before a multitude of the lower orders assembled to hear it. The pannel is alleged to have stated that their sufferings were intolerable, and in coarse and calumnious language to have said, “ A base Oligarchy feed their filthy vermin on our vitals, and rule us as they will.” I consider this expression as tending directly to vilify the Government, and weaken the affections of the country towards its Legislature. In this speech he talks of successful resistance. He speaks of the Reformation, and of the resistance made to the English when their progress was stopped at Bannockburn. What were the feelings meant to be excited in the audience ? He was attempting to degrade the Government, in order to lead his hearers to resistance; and, to give them confidence, he mentioned former instances of successful resistance. No doubt he proposes that the petition shall be laid at the foot of the Throne; and he pays a compliment to the Prince Regent. But what does he add ? 66 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." Is there no intimidation ; is there no threat intended by such language? It is true the expression “ just petition” is employed; but who is to judge whether the petition is just ? Were those at the meeting to judge? It was just saying, if our petition is not listened to, we are absolved from our allegiance. If the expressions shall be proved,
the language is seditious in a high degree. But this pannel is not only accused of expressing himself in this seditious manner while in the heat of addressing his audience, but he is also said to have delivered up the MS. of his speech in order to be printed. If this be proved, then not only did he use seditious language in the heat of his address, for which he might have been in a certain degree excusable, if momentarily not master of himself, but he afterwards did the utmost in his power to circulate this sedition. It was not likely that the speech would go farther than where it was delivered, without some effort to disseminate it, but he shewed his anxiety to obtain for it a wider circulation. The indictment is clearly relevant as to M‘Laren. It is likewise so as to Baird. He was present at the meeting.. I do not say the purpose of the meeting was illegal. Baird became the trumpet of that meeting, and is said to have circulated an account of this very speech, which is charged as having been delivered by M Laren. If the Public Prosecutor proves his averments, he makes out that a direct attack was made on the Legislature, and in strong terms on the House of Commons. “ No nobleman.no elergyman-no naval or military officer, --in short, none who held places, or received pensions from Government, had any right to sit in that House.” And again, “ Is it any wonder, my friends, that this country is brought to its present unprecedented state of misery, when the rights of the people have been thus wantonly violated ?” And in another place it is said, “ 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."-" They have robbed us of our money, deprived us of our friends, and abused our privileges.”— “ At present we have no representatives; they are only nominal, not real, active only in prosecuting their own designs, and at the same time telling us that they are agreeable to our wishes.” If this is not a direct attack on a branch of the Legislature, I do not know what can be an attack on it. Our present business is only to judge of the relevancy of the indictment, and then a Jury will judge both of the law and the facts of the case. If they think neither of the pannels used these expressions, or circulated them, or if they are of opinion that they are not inflammatory and seditious expressions, it is their part, not ours, to find so.
LORD JUSTICE-CLERK.-I entirely concur with the opinions which have been delivered as to what is the province and what is the duty of the Jury in a case of this kind. It is not necessary for me to state any thing farther at present, than that no doubt can be entertained that this indictment is relevant.
Alexander M Laren and Thomas Baird : Attend to the interlocutor of the Court as to the relevancy of this indictment.
“ The Lord Justice-Clerk and Lords Commissioners of Justiciary having considered the criminal indictment, raised and pursued at the instance of his Majesty's Advocate, for his Majesty's interest, agairist Alexander M'Laren and Thomas Baird, pannels, they find the indictment relevant to infer the pains of law; but allow the pannels, and each of them, to prove all facts and circumstances that may tend to exculpate them, or either of them, or alleviate their guilt, and remit the pannels, with the indictment as found relevant, to the knowledge of an Assize.
D. BOYLE, I. P. D.”
The following persons were then named to pass upon the assize of the pannels. James Watson, of Saughton.
Archibald M.Kinlay, haberdasher in John Dodds, farmer at Saughton Mill. Edinburgh. John Drysdale, farmer, Clermiston. John Baxter, confectioner there. David Pringle, of Blegbie.
James Howden, jeweller there. John Stewart, of Binny.
William Kennedy, glover there. John Calder, farmer at Drumcross. William Lindsay, wine-merchant, Leith. John Russel, farmer at Mosside.
John Gowan, wood-merchant there. William Marshall, jeweller, South Bridge, James Stoddart, wine-merchant, EdinEdinburgh.
LORD JUSTICE-CLERK.- Are the declarations of the prisoners admitted ?
Mr CLERK.-Yes, my Lord.
EVIDENCE FOR THE CROWN.
ANDREW FINNIE sworn.--Examined by Mr DRUMMOND.
Q. You are a merchant in Kilmarnock? A. Yes.
Q. Do you know the Dean Park in the vicinity of Kilmarnock ? A. I do.
Q. How far is it from Kilmarnock? - A. About half a mile,
Q. Do you remember that a public meeting was held at the Dean Park on the 7th of December last? -A. I do.
Q. Was there a great number of persons at it?-A. I think about 4000.
Q. A great number of the lower orders ?-A. Yes.
Q. Do you remember that speeches were made at that meeting? A. Yes.
Q. Who began, who opened the business ?-A. Alexander M Laren.
Q. Is that the person there?--A. It is.
Q. What was the speech about, Sir? —A. About the business that the meeting was called for, which was for the purpose of deliberating on the best mode of petitioning for Parliamentary Reform.
Q. Do you remember any part of his speech, any of the words that he used ?-A. Nothing particular, except one passage near the end.
Q. Repeat the passage as near as you remember it?
A. “ We will lay our petitions at the foot of the Throne, (or let us lay, I do not remember exactly which), where sits our August Prince, whose generous nature will incline his ear to hear the cries of his people, which he is bound to do by the constitutional laws of the country; and we are thereby bound to give him our allegiance. But if he should be so infatuated as to turn a deaf ear to the general cries of his people, (or voice of his people, I do not know which,) to hell with allegiance.”
Q. Is that the whole of the passage ?--A. The whole of the pas. sage, as far as I recollect.
LORD ADVOCATE.-Q. I wish to know whether M‘Laren in his speech stated that a number of resolutions had been drawn up by the committee, which were about to be read ?-A. Yes, about the close of his speech, after the expression I alluded to, I think.
Mr DRUMMOND.-Q. Did he recommend any body to be called to the chair of the meeting ?-A. He said the committee unanimously recommended Mr Johnstone.
Q. And did he propose him to be elected to the chair? - Yes, I understood so.
Q. He was called to the chair?-He was called to the chair.
Q. Did you see Mr Johnstone in the other room to-day?--A. I Clid.
Q. Did you ever see a printed account of M:Laren's speech? -A. Yes.
Q. Was it in an account of the proceedings of the meeting ? A. In a pamphlet.
Q. Is that the pamphlet? (The pamphlet was handed to the witness.)-A, That is one of them.
Q. The rest are the same?-A. I understood so.
Q. Did it appear the same as that delivered at the meeting ? A. No. There was a difference particularly as to that passage.
LORD JUSTICE-CLERK.-Q. You mean the passage in reference to allegiance !--Yes, my Lord.
Mr DRUMMOND.-Q. Will you point out to us particularly what is the difference between that printed passage and what he said ? A. There is one part which I think is omitted.