589] for Sedition. of sedition; by the penal law of Scotland, it is a crime very different from the law of England; for it is not necessary to have any act of parliament for it. But gentlemen, although there is no special act of parliament for it, it is very well known that it is a crime of a high nature, and of a dangerous tendency. I take the crime of sedition to be violating the peace and order of society; and it is attended with different degress of aggravation, according to what is the object of it. When sedition has a tendency to overturn the constitution of this country, it borders upon high treason; and if it goes that length, it loses the name of sedition, and is buried under the greater crime of high treason; and a very little more than is contained in this indictment, would have made it the crime of high treason. The crime charged is that of sedition, and the public prosecutor has, in the minor proposition, enumerated a variety of circumstances from which he infers this crime of sedition, and the conclusion of the libel is, that these facts or parts thereof, being found proved by the verdict of an assize, he shall be punished with the pains of law. Gentlemen, although the public prosecutor Gentlemen, in considering this case, one employ all our force to get rid of that foreign Gentlemen, any person who had never heard home proved to you, by a number of witnesses, some of their own convention, and what is best of all, is his own declaration, that he himself was not only present at all their meetings, but was secretary of the society, entrusted with every thing done by them, and according to the proof this day laid before you, when the officers of the law went, they seized all the papers and minutes of their proceedings. If you are of opinion that those meeting are of a seditious nature, how is it possible to find this man innocent? the whole meeting being guilty art and part, and he, being secretary, is the most active man, if one man can be more guilty than another, it is that man now standing at your bar. Gentlemen, that is the general nature of the cause I shall not go over the particulars, but there is one thing I must take notice of just at the very first.-Fyshe Palmer's publication, of all that ever I read, is of the most seditious tendency, and a more wicked publication it was not possible for human invention to devise, and accordingly Palmer was very justly indicted for that composition, and he was found guilty at the last circuit at Perth, by a most respectable jury, in consequence of which he is condemned to banishment, by transportation. Gentlemen, it is clearly proved and acknowledged by Skirving himself, that he was active in circulating that libel, and there cannot be a doubt that if a man circulates seditious libels, he is equally guilty with the man who composes it; if a man composes a seditious libel, and it goes no farther, society is not hurt by it, but the man who publishes it, does more mischief than the man who composes it. To be sure Palmer was justly found guilty of sedition, because he allowed it to go out to the world; and I say Skirving is equally guilty of the pains of law with Palmer; and it would be very difficult for me to conceive it possible, that this man, now at the bar, can be found not guilty. Gentlemen, I will not run through all the other evidence, for indeed almost every article of this libel is proved; but the next article is the hand-bill; it is true he does not seem to be the author of that hand-bill, but his name is at it, many thousands were printed and circulated, sent to the convention, and he does not find fault with it; that is acquiescing in the thing, and by not opposing his name at that writing, he renders himself art and part in that publication, which publication contains matter in itself, I think, of a very criminal nature. I own there is one part of it, the last paragraph that appeared to me to be of a very criminal nature indeed, and it is set forth in the indictment. "Had certain gentlemen countenanced this association last year, instead of pledging their lives and fortunes to prompt a corrupt and ambitious ministry to engage in a war, which could only bring guilt and ruin on the nation, we might have been still enjoying uncommon prospe rity, and a happy understanding amongst ourselves as brethren: and now, if they will not manfully retract that very impolitic step, and immediately join their influence to the only measure which can prevent further calamity, if not anarchy and ruin, their pledge may be forfeited, and the Friends of the People will be blameless." What is the construction of that language? Why certainly that the people would be bound to rise, and that they were at liberty to destroy such tyrants; and that their lives and property would be forfeited, and these Friends of the People would do no harm in the cause of liberty, by cutting their throats:-that is the plain English of that paragraph, I can see no other. Gentlemen, the other particulars are all clearly proved, that they held farther meetings in defiance of the orders of the magis trates. Gentlemen, they assumed that they wanted merely to obtain a reform in parliament. It is certainly a very lawful thing to apply to parliament, and God forbid it should ever be thought unconstitutional; but it was not a reform in parliament that was their object, but a reform to be brought about by force of arms of their own procuring; for they could not mean to obtain any redress from parliament, when they called themselves the British convention of the delegates of the people, associated to obtain universal suffrage and annual parliaments. It was impossible they could ever obtain from parlia ment universal suffrage, and for a very good reason, it is a thing that cannot exist; a nation could not subsist under such a government. And therefore, it was very plain what they meant, they could not mean to get redress from parliament, because they described parliament as corrupted, and the nation upon the brink of ruin." Is not every new day adding a new link to your chains? Is not the executive branch daily seizing new, unprecedented, and unwarrantable powers? Has not the House of Commons (your only security from the evils of tyranny and aristocracy) joined the coalition against you? Is the election of its members either fair, free, or frequent? Is not its independence gone, while it is made up of pensioners and placemen."Now here I appeal to yourselves, whether you do not see that it was not a reform in parliament that was their object; but that they might rouse the common people, whose interest it was to join them to overturn the government. And indeed, gentlemen, the name of citizen and the honours of the sitting, and all the rest of it shows, that in short, they went upon the model of France, adopting it as their pattern; and they thought, that now, as the French had got into their hands the very dregs of the people, say they, why may we not by the same means get into our hands the same description of people in this country; and you see they had a committee of secrecy, and also a convention of emergency. Gentlemen, can you not apply to parliament for a redress of the grievances that you may labour under? It is an absurdity in itself, that there should be any secrecy in that. They were about to establish a committee of secrecy, and a convention of emergency, which had a tendency to raise the people in arms. Gentlemen, I have laid before you what occurs to me, and I leave it to yourselves; if you think that the commentary I have given is the proper one, and that the panel is guilty of the crime charged, which is sedition, you will find the libel proved. If you are of the contrary opinion you will find the libel not proved. I believe there is no crime known amongst men that has a worse tendency, especially when it goes to overturn the established constitution of the country. Gentlemen, you will attend here to-morrow at two o'clock, to give in your verdict. Mr. Skirving, my lord, may I not be admitted to bail. Lord Justice Clerk. No, you cannot; it is contrary to a rule of court. Tuesday, Jan. 7, 1794, 2 o'clock. The names of the Jury called over. Lord Justice Clerk. Gentlemen, who is your chancellor. One of the Jury. Alexander M'Kenzie; and David Anderson, clerk. VERDICT. Edinburgh, January 7, 1794. The above assize having inclosed,' made choice of the said Alexander M'Kenzie to be their chancellor, and the said David Anderson to be their clerk; and having considered the criminal libel, raised and pursued at the instance of his majesty's advocate, for his majesty's interest, against William Skirving; 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 William Skirving GUILTY of the crimes libelled: in witness thereof their said chancellor and clerk have subscribed these presents, consisting of this and the preceding page, in their names and by their appointment, place and date aforesaid. (Signed) ALEXANDER M'KENZIE, Chan. DAVID ANDERSON. Clerk. Lord Justice Clerk. Gentlemen, you have returned a very proper verdict, and I am sure you are entitled to the thanks of your country for the attention you have paid to this trial. Mr. Skirving. My lords, owing to an accident, I have been deprived of very considerable assistance, namely, the advice of counsel from London voluntarily transmitted to me. However, there is no help for it now; but there is one part of the advice of counsel, which may merit the attention, though not perhaps very orderly as to time, but if your lordship will allow me, I will state it. Upon the first page of the indictment it is said, "Whereas by the law of this, and every other VOL. XXIII. well governed realm, sedition is a crime of a heinous nature and severely punishable." The observation of the counsel at London, is "it will be necessary to ascertain, correctly, the definition of the crime of sedition." Erskine, Inst. 8vo. Edit. p. 488, says " sedition consists in the raising of commotions or disturbances in a state." He indeed adds that it is either real or verbal, but sedition can only be that offence whereby an actual breach of the peace is committed in order to prevent the due course of law, and though words of a seditious tendency may be furnished, yet where actual sedition is charged, as in this case, words or libels alone, will not without a real act of sedition, be sufficient to maintain the indictment. The crime charged is sedition, and the averment is, that the said William Skirving is guilty actor or art and part, that is, in the phraseology of the Scots laws, that he is either principal or accessory. But as this is stated in the disjunctive, it does not appear with certainty, whether he is charged as the principal or as accessory. He cannot be both principal and accessory, nor can he be indicted for both offences therefore the whole is void. This is an objection which will apply in arrest of judgment, therefore reserve it till after the verdict. Now, my lord, if there is any thing in that opinion, I plead it in an arrest of judgment, and as it is a thing not common in this court, I appeal to your lordships' candour, that if there is any justice to be obtained upon that point, I may obtain it. Mr. Solicitor General.-As to the nature of sedition, it was fully discussed in argument before your lordships yesterday. With respect to this learned opinion of counsel, he may be a very good English lawyer, and very eminent in his profession, but is perfectly ignorant of the law of Scotland; because as that is stated, it would be impossible for any person to be convicted of any crime, because I never saw an indictment but what charged a defendant with being guilty actor, or art and part thereof. Lord Justice Clerk.--If there had been any thing wrong in the proceedings, the Court would have taken it into consideration. Mr. Skirving.-After all that was stated yesterday as to sedition, I could get no satisfaction upon it. Lord Eskgrove.-My lords, the panel is charged in this indictment with sedition, which has been proved in a very distinct manner; and, my lords, I am always very sorry to pronounce sentence upon any of my fellow subjects for sedition, of the heinousness of which I had flattered myself, from two late instances, every man was so thoroughly sensible that I should not have occasion again to sit upon a trial of that kind. *See Vol. 10, p. 307 of this Collection. part of the libel, to wit, the advertisement which is styled a seditious and inflammatory hand-bill, bearing date, Masons Lodge, BlackFriars Wynd, 4th October, 1793, and bearing the subscription of William Skirving, as the author, by order of the committee. My lords, I still less expected to sit again upon the offence here charged. I mean that of attempting to imitate the example of the late revolution in a neighbouring country, in which country now exists every thing that is horrible in nature-blood-shed-massacremurder; the throwing off the belief of a God, My lord, this is a second paper, in which and abolishing the Christian religion. I he is concerned; the purpose of which is should have thought all this a reasonable charged in this indictment, as tending to cause, why people that meant well, and were rouse the people to unite together, to incite only wishing to amend our government, them to acts of violence, and the words of it would have abhorred the idea of coinciding calling upon the rabble to remember their with them, in what has happened there. But patriotic ancestors, who shed their blood in my lords, from this libel, which is now found the cause of freedom. I do not know what proved by the jury of this country, and a most knowledge this panel has of the pedigree of respectable one; it seems that there have the ancestors of the rabble, who shed their been unfortunately persons so disposed, so blood. I think it is very plain that if the misguided, from motives, I hope good, as to rabble are to assist in the reformation of this adopt the innovation of the forms of proce- country, the shedding of blood should have dure of that country, in their meetings, and been omitted, unless it was to tell them that which must strike every dispassionate mind that was the way of reform, by shedding of with horror. blood. "Had certain gentlemen countenanced this association last year, instead of pledging their lives and fortunes to prompt a corrupt and ambitious ministry to engage in a war, which could only bring guilt and ruin on the nation, we might have been still enjoying uncommon prosperity, and a happy understanding amongst ourselves as brethren: and now if they will not manfully retract that very impolitic step, and immediately join their influence to the only measure which can prevent further calamity, if not anarchy and ruin, their pledge may be forfeited, and the Friends of the People will be blameless."-Telling them that their lives and fortunes would be forfeited, unless they did as that advertisement required them. In the next page it goes on, as to the British convention, the tendency of it, the maxims they held, and the purposes they had in view; in all of which this is found, that Mr. Skirving was an active member, making motions, and concurring in the resolutions that were there made. My lords, it matters not what my opinion, or that of any of us, is on the nature of this offence; or what is the nature of his guilt, independent of what has passed in this court; for suppose, if I had been able to have attended all the trial, which my state of health could not permit; but if I had, and it had been my private opinion, that this man acted from the best of motives, that the evidence against him was not complete, and that he ought to have been acquitted; all would have been unavoidable, in the situation in which I stand now; because, my lords, this libel has been found proven, and this panel has been found guilty in general by a respectable jury of his country, and therefore I am bound to believe that he is guilty of the crime of sedition as laid in the major proposition, and of one and all the facts charged against him in the minor proposition; he is found guilty therefore, art and part in the circulating and publishing of that shocking paper, which was the subject of the trial of Palmer at Perth, and which is engrossed in this indictment. The gentleman has been advised, he says, that a charge of being guilty art and part is an irrelevant charge. My, lord it was well said by the counsel for the crown, that that counsel, however great and eminent he might be in his profession of the laws of England, is totally ignorant of the laws of Scotland. And if he had been a wise man, he would not have meddled in what he did not understand. The gentleman spoke of acts of parliament; he does not know that there is a positive act of parliament that the charge of art and part shall be deemed sufficient. However, this panel, and I am very sorry for it, is found guilty art and part of the crime of sedition as stated in this indictment, and the court have recorded the verdict. My lords, he is found guilty art and part of the first branch of it, which is for circulating the sedi tious paper of Palmer. My lords, he is farther found guilty art and part of the second A farther part of the charge is, for refusing to comply with the authority of the civil magistrates, when they were about to dismiss these meetings, which no person wishing well to the country could approve of. And then he is found guilty of this last advertisement, in which he speaks of the delegates, he says, " your delegates having a permanent existence, your several societies will be multiplied greatly, and means will be used to lay the business before each society individually, by printed bulletins." My lord, these are the chief of the charges, stated in this indictment, and whatever my private opinion of the evidence may be, I dare say it was perfectly sufficient; but even if it was defective, I am bound by the verdict of this jury, which alone is now before me, and they have found unanimously with one voice, that this man is guilty in general, that he is guilty of the whole indictment. My lords, that being the case, as a judge of this court, I cannot take into consideration any feelings of compassion for this panel. I am bound to follow up this verdict of the country with the sentence which the law requires of me. another My lords, I need not say any thing with regard to the pernicious consequences of the crime of sedition, which certainly the different acts charged in the indictment amounts to; it effects every thing that is dear to a man, his life, his property, his liberty; but were I doubtful about it in my own mind, I should be satisfied with the judgment pronounced by this supreme court, upon unfortunate gentleman, Mr. Muir. My situation of health did not permit me to be present at any part of it; but your lordship, upon his being found guilty, did pronounce a sentence of banishment to the plantations, by transportation for fourteen years against that gentleman; and I cannot, from the whole tenor of this indictment, find that the crime of which this man is convicted, is one whit less, and therefore I think the Court is called upon to place him under the same circum stances. Lord Swinton. My lords, in this case the jury have found the panel guilty, not only of sedition in general, but of all the particular charges that are contained in that indictment. It now comes to us to declare, and to inflict the punishment of the law upon him. Your lordship has heard an opinion upon that point very full and very solemn, which renders it perfectly unnecessary for me to take up much of your lordships time. I am afraid, my lords, that this unfortunate man, and many others, do mistake the nature of sedition, and he called upon the Court just now to explain what it is. My lord, I did yesterday, and shall again give my opinion of what it is: it does not consist merely in actual commotions and rebellion against the laws of the country, but it consists in every attempt to excite, by inflammatory discourses and illegal associations I say, by these means to excite- the people to outrage and violence against the constitution, to hurt the public peace. My lord, the offence of the crime lies in endeavouring to excite to violence. My lord, if there is no intention to excite the people to violence, many of these meetings may be innocent, many of them ridiculous. In this case they wished for universal suffrage and annual parliaments. One of these is a most ridiculous and absurd doctrine,-universal suffrage,-nothing can be so absurd;---annual parliaments, or a shorter duration of parliaments, may be matter of argument; but what I mean is, by inflammatory discourses and illegal meetings, endeavouring to excite the people to force and violence. Say they, we only meant to petition lawfully: petitioning parliament is most lawful, and I should be sorry that any person should think it unlawful; but in what manner is it to be done? My lord, is it to be done by numbers and by force? In that case it is war; and if a petition is suffered to be offered in that manner, the King may leave his throne, the Peers their benches, and the House of Commons their seats, for they exist no more. My lord, if any violence is offered, it ceases to be a petition.-If a poor person comes and asks charity, it is a petition; but if he uses a pistol to enforce it, it is no longer a petition; it is a robbery. The crime of sedition may be committed by illegal associations making use of French modes and terms. My lord, the question then comes to be, what punishment the crime deserves. I conceive nothing less than that which was inflicted upon Mr. Muir. I do not know but the crime deserves more, but we cannot do less than punish the same crime by inflicting the same punishment. I have heard that this panel has a great family, and sorry I am for it; but the cases of Messrs. Muir and Fyshe Palmer should have led him to be industrious for his family, followed an honest occupation, and not have meddled with illegal associations. I think the crime deserves more; but taking every thing into consideration, with the circumstances of his family, I prefer the opinion your lordship has given. Lord Dunsinnan. My lords, this panel has been found guilty, by a verdict of his country, of a crime of a very different nature, and of a more dangerous tendency, than those common crimes which occur, and which are the daily subjects of trials in this court. My lord, it is the crime of sedition.-It has been proved, that these persons met for the purpose of subverting and altering the established constitution of this country, under the pretence, indeed, of reform; but I say, really to subvert the constitution of the country. And, my lord, from some other circumstances, which came out yesterday in the evening, and upon which the jury found him guilty, I confess I shudder to think of the horror that, in certain events, might have arisen from the train which this man and his accomplices laid, in different parts of this country.Thank God they are disappointed.-Thank God we are still in possession of laws to protect the constitution, and to establish the security of the subjects of it. My lord, it is our duty,-called upon as we are, it is our duty to execute the laws; and whatever our feelings may be for this unhappy man, we are not at liberty to indulge them at the expense of all that is sacred and dear to us. My lord, I said that this was an unhappy man, and I think I can say so, because no man ever had stronger examples before his eyes of the danger he was in; but in place of having the effect it should have had, it has had no effect at all. My lords, it is always painful to inflict punishment; but, my lords, it is also painful that men will commit crimes; and they must be punished, or society would never be safe. |