You know, Gentlemen, that, by the treaty of Union between this country and England, in 1707, it was most anxiously stipulated and provided, on the part of Scotland, that our municipal laws should be preserved entire. But, at the same time, as we were thereafter to become one people,united under the same legislature, governed by the same sovereign,-receiving from him the same protection, and, therefore, owing to him the same allegiance, it was foreseen, that some provision must be made for regulating that allegiance, and for punishing the breach of it. It was therefore declared, by the same article of the treaty of Union which saved our civil institutions entire," That the laws which concern public right, policy, and civil government, may be made the same throughout the whole united kingdom." In regard to the law of treason, this might have been done in three ways either by compounding and digesting the treason-laws of both countries into a new code, to be common to both; or, by declaring, that the treason-law of Scotland should be the law of the united kingdom; or, that the treason-law of England should also govern Scotland. The last mode was adopted, and wisely adopted; and, therefore, immediately after the Union, the act of 7th Queen Anne, cap. 21. was passed, by which it was enacted in substance, that the law of England, in regard both to the crime of treason, and misprision of treason, and to the form of trial for them, should, in future, be the law of Scotland as to treason, or misprision of treason, committed against the common sovereign. Gentlemen, as to the form of trial, Scotland did not gain much by this change, for we already had a most admirable form of trial; by which every prisoner, accused of ordinary crimes, has as great advantages as the law of England indulges to persons accused of high treason. By the law of Scotland, you know, that every prisoner must have a copy of his indictment, with a list of the jury and witnesses, fifteen days before his trial; and he is entitled to counsel to assist him in his defence, both on the fact and the law. By the law of England, it is only in the case of treason that a prisoner is entitled to a copy of his indictment, and a list of the jury and witnesses, and that, too, only ten days before his trial; and it is a curious circumstance, that this indulgence, which we, in Scotland, consider as essential to a fair trial, one of the ablest, and most upright, humane, and constitutional Judges that ever sat on the bench in England, considers as of very doubtful expediency. But then, Gentlemen, by the law of England it is farther provided, that no man shall be indicted for the crime of treason, except on a bill found against him by a Grand Jury; and that the prisoner, when afterwards put on his trial, shall have right to challenge a certain number of the Jury, without assigning any reason for it ;-privile ges, these, of no great moment in the case of ordinary crimes between man and man, but which may be considered as of considerable importance, in the case of crimes committed in breach of the allegiance due from the subject to the sovereign." The learned judge, after illustrating, according to the statute of Edward III. the first branch; which consists in compassing or imagining the death of the King, proceeded to the second, which had the most direct bearing on the subject in question. By the act of Edward the Third, it is declared to be treason, "If a man do levy war against our Lord the King in this realm." This has been considerably extended by the late act, already mentioned, of the thirty-sixth, George the Third, by which it is declared to be treason, "To compass, imagine, invent, devise, or intend to levy war against the King, within this realm, in order, by force or constraint, to compel him to change his measures and counsels, or in order to put any force or constraint upon, or overawe both or either House of Parliament." By these acts you will perceive, Imo, That it is not only treason actually to levy war against the King; but, 2do, Also, as in the case of his life, it is treason even to compass or imagine, invent, devise, or intend the levying of war against him, provided the object be, either to compel the King to change his measures, or to overawe or constrain either House of Parliament. It is only necessary, therefore, to consider what is to be held a levying of war, the actual raising of which, under the act of Edward the Third, or the compassing and imagining it, under the act of George the Third, will constitute treason. Now, all our writers and lawyers agree, that, in order to constitute this species of treason, it is not necessary that the people so levying war should appear in the shape of regular troops, divided into battalions, and regularly clothed, armed, and disciplined. Rebellion and insurrection, from the very nature of the case, can seldom assume such appearance at first, though a little success may soon enable them to assume all the array and discipline of regular armies. Of this we had a memorable example in our rebellion in 1745. When Prince Charles, commonly called the Pretender, landed in the west, he was for some time joined only by a few half-armed and half-naked Highlanders; and yet there can be no doubt, that he and his associates were as much guilty of treason the first day he raised his standard at the head of Lochshiel, as when he gained the victory at Prestonpans, and was thereby enabled to arm and clothe his followers, and give them more the appearance of a regular army. Therefore, Gentlemen, however ill arranged, however ill disciplined or armed the people may be, there is no doubt that every rising or insurrection, for the purpose of effecting, by force or numbers, any innovation of a public nature, or to redress any public grievance, real or imaginary, things which can only be lawfully and constitutionally accomplished by the King's authority, or that of Parliament, is treason, as an actual levying of war; and consequently to compass or imagine such a rising or insurrection for such purposes, will be to compass and imagine the levying of war against the King under the late statute. What overt acts will be sufficient to indicate such traitorous intention to levy war, it is almost impossible to define, for they may be infinitely various. But in cases where the insurrection has not actually broke out, the overt acts most likely to happen, are meetings and consultations about the intended insurrection, and the means of promoting it-instigating or overawing others to join, by private threats and arguments, or by open proclamation-associations and agreements for that purpose-making or providing arms or ammunition of whatever kind, intended to be used in the insurrection. All these, and similar matters, are held to be competent overt acts, to prove the compassing and imagining the levying of the war to which they apply. Gentlemen, it may be useful to say a few words on the distinction between levying war against the King, and committing a riot. The distinction seems to consist in this, although they may often run very nearly into each other. Where the rising or tumult is merely to accomplish some private purpose, interesting only to those engaged in it, and not resisting or calling in question the King's authority or prerogative, then the tumult, however numerous or outrageous the mob may be, is held only to be a riot; for example, suppose a mob to rise, and even by force of arms to break into a particular prison, and rescue certain persons therein confined; or to oblige the magis trates to set them at liberty; or to lower the price of provisions in a certain market; or to tear down certain inclosures, which they conceive to encroach on the town's common. All such acts, though severely punishable, and though they may be resisted by force, do not amount to treason. No thing is pointed against either the person or authority of the King. For this reason, after the most mature consideration, the outrageous proceedings of the mob of Edinburgh, in the affair of Porteous, were held not to amount to treason, and the few persons who were tried, were tried only as for riot; because, although there was in that case an interference with the royal prerogative of mercy, yet, as it was only directed against the exercise of it in that individual case, and did not in any degree go to impeach or resist his Majesty's general exercise of it in other cases, it was determined to proceed against those accused only as for riot, and not as for treason. But, Gentlemen, wherever the rising or insurrection has for its object a general purpose, not confined to the peculiar views and interests of the persons concerned in it, but common to the whole community, and striking directly against the King's authority, or that of Parliament, then it assumes the character of treason. For example, if mobs were to rise in different parts of the country, to throw open all inclosures, and to resist the execu tion of the law regarding inclosures wheresoever attempted; to pull down all prisons or courts of justice; to resist all revenue officers in the collecting of all or any of the taxes; in short, all risings to accomplish a ge neral purpose, or to hinder a general measure, which by law can only be authorised or prohibited by authority of the King or Parliament, amount to levying of war against the King, and have always been tried and punished as treason. It is, therefore, not the numbers concerned, nor the force employed by the people rising in arms, but the object which they have in view that determines the character of the crime, and will make it either riot or treason, according as that object is of a public and general, or private and local na ture. Gentlemen, it is also proper that I should take notice of one species of overt act, which has created more dif ficulty than any other, and as to which, in former times, some decisions were given which are now universally held to be against law-I mean, Words and Writings. As to these the law seems now to be settled, that mere words spoken, however wicked and abominable, if they do not relate to any act or design then actually on foot against the life of the King, or the levying of war against him, and in the contemplation of the speaker, do not amount to treason, though they may be otherwise severely punished; for example, if a man were openly to declare in so many words, that the King ought to be killed, and that it would be meritorious to do so. This would be a great crime and severely punishable, but it would not be treason, unless it were proved that the man had in contemplation some plot, either of his own or of others, then actually in progress for that purpose. But words spoken in consulta tion or debate with others, as to killing the King by any particular means, or at any given time or place, these unquestionably amount to an overt act of treason. The same may be nearly laid down as to writings. A treatise to prove that all kings are tyrants, and therefore ought to be killed, especially if never divulged or published, does not amount to treason; and, therefore, the decision in the case of Algernon Sidney is now held to be against law; for, in that case, certain papers found in his private desk, and unpublished, were laid as a substantive overt act of treason. On the other hand, all writings, though unpublished, and much more if they have been published, will amount to an overt act of treason, if they are in furtherance of any treasonable measure then in actual preparation. Thus it was held in the case of Lord Preston, that letters and papers containing the detail of a plan of an invasion by the French, might be laid and read as evidence of an overt act of compassing andimagining the King's death, though they were never proved to have been communicated to the enemy. So the writing or printing, or causing to be written or printed, any proclamations, not recommending rebellion and insurrection generally, but exciting the people to rise at a particular time and place for a general purpose, is unquestionably an overt act of treason, under one or both of the branches of the above acts, according as the proclamation may be worded. And, Gentlemen, I need scarcely add, to persons of your education and knowledge, that all persons concerned in distributing, posting, or placarding such proclamations, if aware of the contents of them, are equally guilty of treason, as the authors or printers; in deed, in so far as dangerous consequences go, they are more guilty; for such proclamations would produce but very limited mischief, if persons were not found to give them publicity and circulation. It is now proper for me to add, what, however, is probably known to you all, that in treason there are no accessaries. All who become partakers in the traitorous project, whether at an early or a late stage of it, whether as leaders or followers, whether they engage for the whole plot, or only to execute a particular part of it, are guilty of treason, provided that the part which they do undertake relates strictly and properly to the forwarding and accomplishing the grand object in view by the rest of the conspirators. His Lordship concluded by some instructions peculiarly applicable to the proceedings of the Grand Jury. The Grand Jury having examined the evidence laid before them, brought in a true bill against the following persons: Thomas McCulloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, William Smith, TRIAL OF ANDREW HARDIE. Thursday, 6th July, 1820. The Court met, and the Jury being impanelled, the indictment was read. Mr Cullen objected to that part of the indictment, which states the offence to have been committed at the parish of Falkirk, urging that the vill, or town, of which there are many in this populous parish, ought to have been specified-but the explanation of Mr Serjeant Hullock shewed that this was entirely comformable to practice; and that in the only instance in which the objection was made, it had been overruled. The objection was with drawn. Mr Jeffrey, the prisoner's counsel, objected to the right of Serjeant Hullock to plead, and to the qualifica tion of the Sheriff to strike the Jury. After a very learned argument, both those objections were overruled, the Lord President observing that to judge by the abilities now displayed, the panels were in no danger of suffering by the want of an English coun sel. The indictment was opened by Mr Hope. The LORD ADVOCATE rose, and, after having given a view of the law of treason nearly similar to that already given by the Lord President, proceeded to state an outline of the facts which were to appear in evidence. Gentlemen, in stating the facts of the case, it will not be necessary for me to go back far previous to the occurrences which took place upon the 5th of April last. It is, however, fit that I should notice, that betwixt the night of Saturday, the first of April, and Sunday morning, the second, there was posted up, all over the town of Glasgow, and in various parts of the adjoining country, an Address to the inhabitants of the united kingdom, containing matters of the most treasonable nature, an Address which no doubt many of you have heard. It is quoted at length in the indictment, and a copy will be laid before you in evidence; it is long, and I will not go through the whole of it; but I shall quote one or two parts of it, as shewing the treason which this indictment charges. It is stated to be, "An Address to the Inhabitants of Great Britain and Ireland ;" and commences thus: "Friends and Countrymen, roused from the torpid state in which we have been sunk for many years, we are at length compelled, from the extremity of our sufferings, and the contempt heaped upon our petitions for redress, to assert our rights at the hazard of our lives, and proclaim to the world the real motives which (if not misrepresented by designing men, would have united all ranks,) have reduced us to take up arms for our common grievances." It then goes on to detail the various reasons which have led these persons to this result; and then proceeds to call upon the soldiery to abjure their allegiance :-" Soldiers! shall you, countrymen, bound by the sacred obligation of an oath to defend your country and your King from enemies, whether foreign or domestic, plunge your bayonets into the bosoms of fathers and brothers, and at once sacrifice at the shrine of military despotism to the unrelenting orders of a cruei faction, those feelings which you hold in common with the rest of mankind?" It then directs them to turn their attention to Spain; and after going on in the same strain, it proceeds thus: "We earnestly request of all to desist from their labour from and after this day, the 1st of April, and attend wholly to the recovery of their rights, and consider it as the duty of every man not to recommence until he is in possession of those rights which distinguishes the freeman from the slave, viz. that of giving consent to the laws by which he is to be governed. We therefore recommend to the proprietors of public works, and all others, to stop the one, and shut up the other, until order is restored, as we will be |