SUMMING UP.

The Lord Justice Clerk.-This indictment, gentlemen, is the longest I have ever seen, since I had the honour to sit in this court; and is to be tried by a great number of circumstances. It shall be my business to simplify it as much as I can.

A relevant charge, gentlemen, may be contained in a few lines; but the humane principle on which the practice is carried on, is to state the facts at some length, for the benefit of the prisoner; and on this principle the lord advocate has acted in the present case.

But, gentlemen, although the facts are thus fully stated; it is by no means absolutely necessary to prove the whole, in order to establish the guilt of the prisoner. You have only to look at the concluding sentence of the indictment, which runs thus, "all which, or part thereof being found proven," &c. from which you clearly perceive that you are to consider if as many of the facts libelled are proved to your satisfaction as will establish the general charge.

The question, then, gentlemen, for your
consideration is simply this: On the whole
of the proof led, when taken in connexion, do
you think the panel guilty of sedition or not?
Now in examining this question, there are
two things which you should attend to, which
require no proof. The first is, that the Bri-
tish constitution is the best in the world;-
for the truth of this, gentlemen, I need only
appeal to your own feelings. Is not every
man secure in his life, liberty, and property?
Is not happiness in the power of every man,
except those perhaps, who, from disappoint-
ment in their schemes of advancement are
discontented? Does not every man enjoy
unmolested the fruits of his industry? And
does not every man sit safely under his own
vine and his own fig-tree, and none shall
make him afraid? The other circumstance,
gentlemen, which you have to attend to, is
the state of this country during last winter.
There was a spirit of sedition and revolt going
abroad which made every good subject se-
riously uneasy. I observed the reflection of
the master of the grammer school of Glasgow,
who told Mr. Muir, he conceived that propos-
ing reform then was very ill-timed; I coin-
cide in that opinion, and I leave it for you to
judge, whether it was perfectly innocent or
not in Mr. Muir, at such a time, to go about
among ignorant country people, and among
the lower classes of the people, making them
leave off their work, and inducing them to
believe that a reform was absolutely necessary
to preserve their safety and their liberty,
which had it not been for him, they never
would have suspected to have been in danger.
You will keep this in remembrance, and
judge whether it appears to you, as to me, to
be sedition.

You will next attend, gentlemen, to Mr.
Muir's conduct at Kirkintilloch, which is to

[230

be collected chiefly from the evidence of
Johnstone, Weddel, and Freeland. You will
observe particularly how he ran a parallel
between the French and English constitutions,
and talked of their respective taxes, and their
causes, and how he gave a preference to the
of such harangues. With respect to circulat-
French. You are to judge of the tendency
But, gentle-
ing Paine's book, Mr. Muir has said that it
has never been condemned.
men, Mr. Muir should recollect, and you
must be sensible, that a judgment of a
make it seditious. It is in itself most sedi-
court of law is by no means necessary to
tious, treasonable, and dangerous. Sedition
in England, gentlemen, must be sedition
here; and sedition here must be sedition in
England; and it would be right in forming
your opinion to have an eye upon the judg-
ments of the English courts, who have con-
demned the publication of that work. The
are much of the same stamp. I agree in
other writings mentioned in the indictment
with their context. You will do this when
the idea that the passages should be taken

you look over them, and have only to recol-
lect a simple proposition, that to render a
book seditious, it is not necessary it be all
sedition.

Now, gentlemen, the fact is clearly proven,
of his having circulated some of these books;
it is for you to draw the consequence.

An attack has been made on the young woman, Fisher. But I must confess I never heard a more distinct evidence; and no grudge between her and the family has been condescended on. On the contrary, from her answer to a very proper question put to her by one of yourselves, she appears to have left the family on very good terms.

Gentlemen, the only wish of the prosecutor can be to bring offenders to justice; and he must make use of such evidence as the case admits. Her testimony, however, in several material facts has been supported.

You will next attend to Mr. Muir's beha

viour in the convention, when he read the Irish Address. Instead of denying this fact, Mr. Muir has asserted the innocence of it, and enlarged upon its merits. Gentlemen, I cannot help saying, I think it a most seditious and inflammatory paper. You will take it with you and judge of it.

You have next to turn your attention to the outlawry. Running away from justice, gentlemen, must always be considered an evidence of guilt. Mr. Muir has attempted to set up an apology for his non-appearance; but I would ask, why, at such a crisis, he should go to France? Independently of that, he should have recollected that an embassy to a foreign country, without proper authority, is a species of rebellion. This proves, how

See the observations of Mr. Justice Day on the case of Judge Johnson, in the court of King's-bench of Ireland, A. D. 1805, post.

ever, that he was supposed to have considerable influence with those wretches, the leading man there, and establishes his connexion with them. And what characters are these? I never was an admirer of the French; but I can now only consider them as monsters of human nature.

As Mr. Muir has brought many witnesses to prove his general good behaviour, and his recommending peaceable measures and petitions to parliament, it is your business to judge how far this should operate in his favour, in opposition to the evidence on the other side.

Mr. Muir might have known that no attention could be paid to such a rabble. What right had they to representation? He could have told them that the parliament would never listen to their petition. How could they think of it? A government in every country should be just like a corporation; and, in this country, it is made up of the landed interest, which alone has a right to be represented; as for the rabble, who have nothing but personal property, what hold has the nation of them?* What security for the payment of their taxes? they may pack up all their property on their backs, and leave the country in the twinkling of an eye, but landed property cannot be removed.

The tendency of such a conduct was certainly to promote a spirit of revolt; and if what was demanded should be refused, to take it by force.

Mr. Muir's plan of discouraging revolt, and all sort of tumult was certainly political: for until every thing was ripe for a general insurrection, any tumult or disorder could only tend, as he himself said, to ruin his cause; he was in the mean time, however, evidently poisoning the minds of the common people, and preparing them for rebellion.

Gentlemen, you will take the whole into your consideration. I now leave it with you, and have no doubt of your returning such a verdict as will do you honour.

The Lord Justice Clerk having finished his address about half past one o'clock in the morning of Saturday, the Court was adjourned until 12 o'clock of that day, and the jury were immediately enclosed.

their clerk; and having considered the crimi-
nal libel, raised and pursued, at the instance
of his majesty's advocate for his majesty's
interest, against Thomas Muir panel, the
interlocutor of relevancy pronounced thereon
by the Court, the evidence adduced in proof
of the libel, and the evidence in exculpation;
they are all, in one voice, finding the panel,
Thomas Muir, Guilty of the crimes libelled;
in witness thereof their said chancellor and
clerk have subscribed these presents, con-
sisting of this and the preceding page, in their
names and by their appointment, place, and
date aforesaid.
(Signed) GILBERT INNES, Chan.
JOHN BALFOUR, Clerk.

The verdict being recorded, the Lord Justice Clerk addressed the Jury, and said, That this trial had been of the greatest importance. He was happy that they had bestowed so much attention upon it. and informed them, that the Court highly approved of the verdict they had given. He then asked their lordships severally their opinion upon this verdict, and what punishment should be inflicted.

They delivered their opinions as follows:Lord Henderland observed, that the alarming situation in which this country was during the course of last winter, gave uneasiness to all thinking men: his lordship said, that he had now arrived at the most disagreeable part of the duty incumbent upon him, which was to fix the punishment due to the crime, of which the panel was found guilty. The indictment charges him with sedition, with exciting a spirit of discontent among the inferior classes of people, and with an attack against the glorious constitution of this country; the jury, by the verdict which they had returned, and to which the Court had alone recourse, had found the panel guilty; and it was their lordships only duty, now to fix the punishment due to the offence. His lordship said, that he would not dwell upon the evil consequences of the crimes committed by the prisoner. The melancholy example of a neighbouring country, which would for ever stain the page of history, rendered it unnecessary for him to recapitulate the circumstances of the case. In that country, the consequences of such measures have produced every kind of violence, rapine, and murder. There appeared, he said, to have been in this country a regular plan of seditious measures. The indecent applause which was given to Mr. Muir, last night, at the conclusion of his defence, within these walls, unknown in that high court, and inconsistent with the solemnity which ought to pervade the administration of justice, and which was insulting to the laws and dignity of that Court, proved to him, that the spirit of sedition had not as yet subsided. He would not, he said, seek to aggravate the offence committed by the panel, by the misconduct of his deluded friends, in order to increase the punishment.

233]

for Sedition.

The punishment to be inflicted is arbitrary, of
which there is a variety, and we have our
choice of banishment, fine, whipping, impri-
Banishment,
sonment, and transportation.
he observed, would be improper, as it would
only be sending to another country, a man
dangerous to any, where he might have the
opportunity of exciting the same spirit of dis-
content, and sowing with a plentiful hand, se-
dition; fine would only fall upon his parents
who had already suffered too much by the for-
feiture of his bail; whipping was too severe and
disgraceful, the more especially to a man who
had bore his character and rank in life; and
imprisonment, he considered, would be but a
temporary punishment, when the criminal
would be again let loose, and so again disturb
the happiness of the people. There remains
but one punishment in our law-transporta-
tion. It was a duty he considered he owed
to his countrymen to pronounce it, in the
situation in which he sat, as the punishment
due to his crimes. His lordship said, I am
sorry, it wrings my very heart to think that a
gentleman of his description, of his profes-
sion, and of the talents he possesses, should
be guilty of a crime deserving such a punish-
ment, but I see no alternative. For what se-
curity could we have against his future opera-
tions, but his removal from this country, to a
place where he could do no farther harm?
His lordship was therefore of opinion, that
the panel should be recommitted to prison,
there to remain, till a proper opportunity
should occur for transporting him, to such
place as his majesty, with the advice of his
privy council might appoint, for the space of
fourteen years from the date of the sentence;
with certification that if he return within
that time, he shall suffer death.

liberty, the worst sort of tyranny was esta-
blished, and all the legal and moral ties which
bind mankind were broken. Nay, shameful
to tell, even religion itself was laid aside, and
publicly disavowed in their National Conven-
tion.

Certain wicked persons have set on foot in
this happy kingdom, the first steps of the
same plan under the specious pretences of
liberty and equality; assuming to themselves,
most falsely and insidiously, the respectable
names of Friends of the People, and of Re-
form, although they deserve the very oppo-
site denomination; by which means they
have misled, and drawn after them, a great
number of well-meaning, though simple and
unwary people.

A most respectable jury has found the prisoner guilty of endeavouring to excite this sort of sedition :-and how did he attempt to explain and justify himself?-By denying seditious intent, and alleging his motives were a desire of reformation, and that the mode he proposed for obtaining it, was a legal, peaceable, and constitutional petition to the House of Commons. But how were these motives reconcileable with the principles in the writings and pamphlets which he justified and circulated? The fundamental doctrine of these books is, that the whole people are in effect to judge of, and direct in every thing, and that to obtain their end, they have only to WILL it. Is not such a reformation a subversion of our wise and happy government? And is a petition of millions of people who have WILLED to have what they pray, a legal, peaceable, and constitutional petition?

punishment among us is only to deter others from committing like crimes in time coming.

In this view I concur in the proposal that has been made of transportation for fourteen years, which is a mild punishment, considering the offence, and considering the danger of the times.

With regard to the punishment, I observe, that the maxim, that the severity of punishment ought to be in proportion to the atrocity Lord Swinton.-The crime with which the of the crime, does not hold in our law; for panel is, by the jury of his country, found that, with us, punishment is not revenge nor guilty, is sedition. It is a generic crime, and atonement. If punishment adequate to the which is defined by our lawyers to be "a crime of sedition were to be sought for, it commotion of the people without authority, could not be found in our law, now that toror the exciting of such commotion, to the dis-ture is happily abolished. The sole object of turbance of the public peace." This crime, he observed, consisted of many gradations, and might have run from a petty mob about wages, even to high treason. He thought the punishment should be adapted to the crime. The question, he said, was then, What was the degree of the crime the panel had been guilty of? That was to be discovered from the libel, of which he has been found guilty by the unanimous verdict of a respectable jury of his country. It appeared to him to be a crime of the most heinous kind, and there was scarcely a distinction between it and high treason. As by the dissolution of the social compact it made way for, so it might be said to include every sort of crime, murder, robbery, rapine, fire-raising, in short, every species of wrong, public and private. This was no theoretical reasoning, for we had it exemplified before our eyes, in the present state of France, where, under the pretence of asserting

By the Roman law, which is held to be our common law where there is no statute, the punishment was various, and transportation was among the mildest mentioned. Paulus, L. S8. Dig. de Pœnis writes, Actores seditionis et tumultus, populo concitato, pro qualitate dignitatis, aut in furcam tolluntur, aut bestiis objiciuntur, aut in insulam deportantur.'-We have chosen the mildest of these punishments. By the Codex, lib. 9,

* See Mr. Fox's remarks on this passage in his speech in the House of Commons, March 10th, 1794. New Parl. Hist., vol. 30.

t. 30. de seditiosis et his qui plebem contra | the indecent applause which was given the ' rempublicam audent collegere,' l. 1 and 2., panel last night, convinced him, that a spirit such persons are subjected ad mulctam gra- of discontent still lurked in the minds of the vissimam.'-Baldus writes, Provocans tu- people, and that it would be dangerous to "multum et clamorem in populo, debet mori allow him to remain in this country. His 'pœnâ seditionis.'-And by a constitution of lordship said, this circumstance had no little the emperor Leo: Subdandos autem pœnis weight with him, when considering of the pu' eis quas de seditionis et tumultûs auctoribus | nishment Mr. Muir deserved. He never had 'vetustissima decreta sanxerint.' a doubt but transportation was the proper punishment for such a crime, but he only hesitated whether it should be for life or for the term of fourteen years-the latter he preferred, and he hoped the panel would reflect on his past conduct, and see the impropriety which he had committed, and that if he should be again restored to his country, he might still have an opportunity of showing himself to be a good member of that constitution which he seemed to despise so much.

The crime here, though very near to treason, does not amount to it. The mildest of the punishments for the sedition of which the prisoner has been found guilty is transportation; and I think it is the punishment in this

case.

Lord Dunsinnan.-His lordship spoke in so low a tone of voice that we had not an opportunity of following him throughout the whole of his opinion. He, however, agreed, with the rest of their lordships, in the punishment which they said Mr. Muir deserved, viz. transportation for fourteen years, with the usual certification, &c.

Lord Abercromby.-I think it by no means necessary to say much of the enormity of this crime, after what has been already said. By our old law it would have amounted to treason; and even by the statute of Edward it comes very near it.

Had the panel's speeches produced any riots or tumults, it might have involved him in high treason. This rendered him cautious; for otherwise he might this day have received sentence to suffer the punishment due to traitors.

Another reason why he avoided tumults was mentioned in his speech, that a revolution could only be effected by an insurrection of the general mass of the people; trifling tumults would not answer.

[Here Mr. Muir rose and said "I deny

it, my lord; it is totally false."] If any thing could add to the improper nature of the panel's defence, it was his pretended mission to France, and the happiness he expressed in the circle of acquaintance he had there. It is evident, that his feelings did too much accord with the feelings of those monsters. His lordship coincided with the rest of their lordships, in regard to the punishment, which, they had given as their opinion,

Mr. Muir deserved.

Lord Justice Clerk.-His lordship said, he was considerably affected to see the panel stand trial for sedition, a man who had received a liberal education, was member of a respectable society, possessed considerable talents, and had sustained a respectable character. The lowest species of this crime is heinous; but when aggravated by creating disloyalty and disaffection to government, it amounts to the highest sort of sedition. It borders on treason; and perhaps it is owing to the humanity of the lord advocate, that the panel had not to stand trial for his life.

His lordship agreed in the propriety of the proposed punishment, and he observed, that

After his lordship had delivered his opinion, and during the time the sentence was recording, Mr. Muir rose and said :

My lord justice clerk, I have only a few words to say. I shall not animadvert upon the severity or the leniency of my sentence. Were I to be led this moment from the bar to the scaffold, I should feel the same calmness and serenity which I now do. My mind tells me, that I have acted agreeably to my conscience, and that I have engaged in a good, a just, and a glorious cause-a cause which sooner or later must and will prevail; and, by a timely reform, save this country from destruction.

The clerk then read the sentence.

sioners of justiciary, having considered the The lord justice clerk, and lords commisforegoing verdict, whereby the assize, all in one voice, find the panel Guilty of the the said verdict, in terms of an act passed in crimes libelled: the said lords, in respect of the 25th year of his present majesty, intituled, of felons and other offenders in that part of "An act for the more effectual transportation Great Britain called Scotland," ordain and adjudge that the said Thomas Muir be transported beyond seas, to such place as his maJesty, with the advice of his privy council, shall declare and appoint; and that for the certification to him, if after being so transspace of fourteen years from this date; with ported, he shall return to, and he found at the said fourteen years, without some lawful large, within any part of Great Britain, during cause, and be thereof lawfully convicted, he shall suffer death as in cases of felony, withand ordain the said Thomas Muir to be carout benefit of clergy, by the law of England: ried back to the Tolbooth of Edinburgh, therein to be detained till he is delivered over for being so transported, for which this shall be to all concerned, a sufficient warrant.

(Signed)

ROBERT M'QUEEN.

"In the library of the Antonian monks at St. Sebastian, Rio Janeiro, we were shewn an

Bibliotheca

Ordinis Sancti Antonii fratrum
Observantiæ suæ

Thomas Muir, de Hunters hill,
Gente Scotus, Animá orbis terrarum civis
Obtulit.

O Scotia, O longum felix longumque superba
Ante alias patria, Heroúm sanctissima tellus,
Dives opum, fecunda viris, lætissima campis,
Erumnas memorare tuas summamque malorum
Uberibus [qu. verbis].

Quis queat et dictis nostra [qu, nostros] æquare
dolores

Et turpes ignominias et barbara jussa.
Et nos patria fines et dulcia linquimus arca,
Et cras ingens iterabimus æquor.

Civitate Sancti Sebastiani, 23 Julii, 1794.

"We have endeavoured to correct the false Latin which our copyist has made in several instances, but must refer him back to some better copy; and we should have liked to have known the name of the book presented."-Review of an Account of a Voyage to establish a Colony at Fort St. Philip in New South Wales, by J. H. Tuckey; Gentleman's Magazine, April 1305, pp. 337-9.

Respecting this case, see in the New Parliamentary History the debates in the House of Lords, January 29th, 1794; in the House of Commons, March 10th, 1794; and in the House of Lords, April 25th, 1794. See also in this volume the cases of Palmer, Skirving, Margarot, Sinclair, and Gerrald, particularly | the last.

594. Proceedings on the Trial of the REV. THOMAS FYSHE PALMER, on an Indictment charging him with Seditious Practices. Tried before the Circuit Court of Justiciary, held at Perth, on the 12th and 13th September: 33 GEORGE III. a. D. 1793.*

Thursday, September 12, 1793.

The Court met at eight o'clock in the morning.

MR. BURNETT (advocate depute for the Crown) the next case I mean to bring before your lordship is that of Thomas Fische Palmer, for seditious practices.

Mr. Haggart (counsel for the panel).My lords, the panel at the bar is Thomas Fyshe Palmer, but the indictment does not apply to that gentleman.

Lord Eskgrove, We must hear first, whether he pleads guilty, or not guilty.

Mr. Haggart. He is not the person, my lord.

Lord Abercrombie.-In point of form, the indictment must be read first.

[The Indictment read as follows:] George, &c. Whereas, it is humbly meant and complained to us by our right trusty Robert Dundas, esq., of Arniston, our advocate for our interest, upon Thomas Fische Palmer, clergyman, sometime residing in Dundee, and commonly designed Unitarian minister: that, by the laws of this, and of every other well governed realm, the wickedly and feloniously writing or printing, or the causing to be written and printed, any seditious or inflammatory writing, calculated to produce a spirit of discontent in the minds

* Of this trial there are two printed accounts; these I have carefully compared, and from them, the report here given is compiled.

of the people, against the present happy con-
stitution and government of this country,
and to rouse them up to acts of outrage and
violence, by insidiously calumniating and
misrepresenting the measures of government,
and falsely and seditiously justifying and vin-
dicating the enemies of our country, with
whom we are at open war: as also the wick-
edly and feloniously distributing and circu-
lating, or the causing to be distributed and
circulated, any seditious and inflammatory
writing, are crimes of an heinous nature,
dangerous to the public peace, and severely
punishable: yet true it is, and of verity,
that the said Thomas Fische Palmer, above
complained upon, is guilty actor or art and
part, of all and each, or one or other of the
foresaid crimes; in so far as, sometime dur
ing the month of July 1793, or of June pre-
ceding, or of August following, the said Tho-
mas Fische Palmer, having been present at
a meeting held at Dundee, and county of
Forfar, which meeting denominated itself,
"A Society of the Friends of Liberty," or bore
some such name, and of which meeting or
society, the said Thomas Fische Palmer is
or was a member; he did then and there
put into the hands of George Mealmaker,
weaver in Dundee, a manuscript or writing,
of a wicked and seditious import, in the form
of an Address to their Friends and Fellow
Citizens; which manuscript or writing, was
sometime during the months aforesaid, at
Dundee aforesaid, or at some other place
to the public prosecutor unknown, wickedly