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A DIGESTED INDEX 



TO 



HOWELL'S EDITION OF THE STATE TRIALS, 



BY DAVID JARDINE, Esq. 

OF THE MIDDLE TEMPLE, BARRISTER AT LAW. 



AN Index to HovveU's Edition of the State Trials has long been a 
desideratum : amongst all classes of readers, and particularly amongst 
members of the legal profession, it has been a constant subject of regret 
that so valuable a repository of historical and constitutional information 
should be almost inaccessible, as a book of reference, for want of a con- 
venient Index. The publishers, having determined to close the Work 
with the Thirty-Third volume, have much satisfaction in being able to 
annoimce to the Public, that a digested Index to the whole collection 
is now nearly ready for the Press, and will be published early in the 
Year 1827, and form the Thirty-Fourth volume of the entire Work. 

In making this Compilation, the object has been to furnish the general, 
as well as the professional Reader, with an easy instrument of reference 
to every thing contained in the collection ; and it has been considered 
that the simplest method of arrangement will be best calculated to effect 
this object The Index, therefore, merely consists of two Tables, alpha- 
betically arranged ; the first being a Table of Names, with a short abstract 
under each name of the Contents of the Work, so far as they relate to 
the individual to whom the name belongs, and a reference to the passages 
in which he is mentioned : the second being a Table of principal matters, 
containing references to all the leading subjects, and all the incidental 
circumstances, throughout the whole collection. The heads of reference, 
in both Tables, have been made as numerous and particular as possible, 
with a view to afford a large number of such points as may most probably 
occur to the memory of the Reader, and by which he may be guided 
directly to the object of his search. 




COMPLETE COLLECTION 

OF 

State Trials 

« 

AND 

PROCEEDINGS FOR HIGH TREASON AND OTHER 

CRIMES AND MISDEMEANORS 

FROM THE 

EARLIEST PERIOD TO THE YEAR 1783, 
WITH NOTES AND OTHER ILLUSTRATIONS: 

COMPILED BY 

T. B. HOWELL, Esq. F.R.S. F.S.A. 

S^ AND 

CONTINUED 

FROM THE YEAR 1783 TO THE PRESENT TIME: 

BY 

THOMAS JONES HOWELL, Esq. 



VOL. xxxm. 

[BEING VOL. XIL OF THE CONTINUATION] 
57 GEORGE IIL...A. D. 1817 1 GEORGE IV....A. D. 1820. 



LONDON: 

LONGBfAN, REES, ORME, BROWN & GREEN; J. M. RICHARDSON; KINGS- 
BURY, PARBURY, & ALLEN; BALDWIN, CRADOCK, & JOY; E. JEFFERY 
& SON ; J. HATCHARD & SON ; R. H. EVANS ; J. BOOKER ; J. BOOTH ; 
A»D BUDD & CALKIN. 

1896. 



• • * 



Lmm OF THE 
AUG 21 1900 



T. C. HiMirif, 
FriBlcr, 
PatenuMSer-row Preih 



NOTICE. 

B Y the present volume^ this Series of State Trials (termi- 
nating with the Reign of his late Majesty) is brought to a close ; 
nor is there, at the present moment, any intention to continue the 
publication of Modem State Trials to a more recent period. 
Availing themselves, , therefore, of the opportunity which thus 
presents itself, the Publishers have completed their arrangements 
for the early appearance of a. Gei^ekal Digested Index, 
embracing the contents as well of the First as of the Second 
Series. 

In selecting from the very numerous cases which fall under 
the denomination of State Trials, those which form the Second 
Series, care has been taken to reject none the omission of which 
would be inconsistent with the genial object of the work. Of 
those which have been omitted, some did not appear to be of 
su^ffident importance to counterbalance the inconvenience of the 
great eMension of the work which their insertion would have 
occasioned; and others, in so far as relates to material points, 
are f idly reported elsewhere. 



TABLE OF CONTENTS 



TO 



VOLUME XXXIII. 



GEORGE THE THIRD, A. D. 1817. 

Page 
()98. Proceedings in the High court of justiciary at Edinburgh 

against ALEXANDER M'LAREN and THOMAS BAIRD, 

for Sedition^ a. d. 1817 • • •••• 1 

699. Proceedings in the High Court of Justiciary at Edinburgh^ on two 

successive Indictments^ raised by his Majesty's Advocate^ against 
WILLIAM EDGAR^ for administering unlawful Oaths^ a. d. 
1817 145 

700. Proceedings in the High Court of Justiciary at Edinburgh^ on two 

successive Indictments, raised by his Majesty's Advocate, against 
ANDREW M'KINLEY, for administering unlawful Oaths, a. d. 
1817 275 

Proceedings against JAMES M'EWAN and others at Glasgow ... 629 

701. Proceedings in the High Court of Justiciary at Edinburgh, against 

NEIL DOUGLAS, Universalist Preacher, for Sedition, a. d. 
1817 633 



GEORGE THE FOURTH, A. D. 1820. 

702. The whole Proceedings on the Trial of ARTHUR THISTLE- 
WOOD, for High Treason, a. d. 1820 681 



TABLE OF CONTENTS. 

703. The whole Proceedings on the Trial of JAMES INGS, for High 

Treason, a. d. 1820 ••• «• «.... 957 

704. The whole Proceedings on the Trial of JOHN THOMAS BRUNT, 

for High Treason, a. d. 1820 1177 

705. The whole Proceedings on the Trial of WILLIAM DAVIDSON 

and RICHARD TIDD, for High Treason, a.d. 1820 1337 

ADDENDA to ihe Case of VALENTINE JONES, Esq., yd. x. of 

this Continuation, p. 336 • •• 1567 



STATE 



I T 






STATE TRIALS, 



698. Proceedings in the High Court of Justiciary at Edinburgh 
against Alexander M'Larek and Thomas Baird, for 
Sedition^ March 5th — 7th: 67 George III. a. d. 1817. 



flIGti COURT OF JUSTICIARY. 

March 5, 1817. 

Present, 

Hl Hon. Bamd BmfU^ Lord Justice Clf^rk. 

Lord Bermani* 

IjardGUiies. 

lAudPHmiify. 

Lord Baton. 

Countelfor the Croum* 

. Rl Hon. Alejotider MataiuKMe^ Lord Adfo- 
- cate [afterwards a l<»d of Session and Justi- 
ciary, with the title of Lord Meadowhank.J 
Janes Wedderktmj Esq. Solicitor^eneral. 
H. H. Dmifwiondy Esq. 
J. A, Maeonoekiey Esq. 

H, Wmraukry Esq. Agent. 

Coiamlfor Alexander M*Lat€n. 
Jckn Clerk, Esq. 
J. P. Grant, Esq. 
James CamjieUy Esq . 

Mr. JR. Morion^ Agent. 

Counsel for Thomas Baird, 

Thmas Jeffery, Esq". 
Benry Cockbum, Esq. 
X 5. Stewart^ Esq. 

Mr. J. Campbell, W, S. Agent. 

Xorrf Jftf^ior C2»r&. — Alexander M'laren 
and Thomas Baird« attend to the indictment 
against you, which the clerk of Court will read. 

" Alexander m«laren, now or lately 

weafer in Kilmamack, in the county of Ayr, 
and Thomas Baird, merchant there, you are 
indicted and accused, at the instance of Alex- 
ander Maoonodiie of \Meadowhank, his ma- 
jesty's ' advocate, for his majesty's interest: 
thai albeit, by the laws of this and of every 
other well-governed realm, Sedition b a crime 
of a heinous nature, and seveitly punishable : 

VOL. xxxm. 



yet true it is and of verity, that you the said 
Alexander M'Laren and Thomas Baird are 
both and each, or one or other of you, guilty 
thereof, actors or actor, or art and part : in $o 
far as, you the said Alexander M*Laren did, 
at a public meeting, held at Dean-park, in the 
vicinitv of Kilmarnock aforesaid, on the 7th 
dajT of December 1816, or on one or other of 
the days of that month, or of November im- 
mediately preceding, or of January immedi- 
ately following, which meeting was attended 
by a great multitude of persons, chiefly of the 
lower orders, wickedly and feloniously deliver 
a speech, containing a number of seditious and 
in&mmatory remarks and assertions, calculated 
to degrade and bring into contempt the go- 
vernment and legislature, and to withdraw 
therefrom the confidence and affections of the 
people, and fill the realm with trouble and dis- 
sention ; in which speech there were the fol- 
lowing or similar wicked and seditious expres- 
sions : — " Tliat our sufferings are insupportable, 
is demonstrated to the world ; and that they 
are neither temporary, nor occasioned by a 
transition * from war to peace,' is palpable to 
all, though all have not the courage to avow 
it. The fact is, we are nUed by men only so* 
ficitous for their own a^randizement ; and 
they care no farther for the great body of the 
people, than they are subservient to their ac- 
cursed purposes. If you are convinced of this, 
my countiymen, I would therefore put the 
question, are you degenerate enough to bear 
it ? ShaJl we, whose forefathers set limits to 
the all-grasping power of Rome; shall we, 
whose forefathers, at the never to be forgotten 
field of Bannockbum, told the mighty Edward, 
at the head of the most mighty array ever 
trod^ on Britain's soil, ' Hitherto shait thoa 
come, and no farther;' shall we, I say, whose 
forefathers defied the efforts of foreign tyranny 
to enslave our beloved country, meanly permit, 
B 



31 



57 GEORGE III. 



Trial of Alexander McLaren 



C4 



{ii Our day, wifkettt a murmiir, a base oligaithy 
to feed their filthy yermin on our vitals, aud 
rule us as they will ? No, my countrymen. 
Let us lay our petitions at the foot of the 
throne, where sits our August Prince, whose 
gtacious nature will incline his ear to listen to 
tiie cries of his people, which 1^ is bound to 
do by the laws of the country. But, should 
he be so infatuated as to turn a deaf ear to- 
their just petition, he has forfeited their allegi- 
ance. Yes, my^ fellow townsmen, in such a 
case, to helL with our allegiance." And you 
the said Alexander MLaren did, shortly there- 
after, deliver, or cause to be delivered, your 
said speech, in manuscript, to Hugh Crawford, 
printer in Kilmarnock, to be by him printed and 
published. And you the said Thomas Baird 
having been present at the said meeting, and 
having heard the said speech, and others of a 
similar tendency, delivered there, did, shortly 
thereafter, and in the course of the said 
months of December or January,, wickedly 
and feloniously print, or cause or procure to 
be printed, at the printing-office of the said 
Hugh Crawford, id Kilmarnock aforesaid, a 
seditious tract or statement, intituled, " Ac- 
count of the proceedings of the public meeting 
of the Burgesses and Inhabitants of the town 
ofKifinainock, held on the 7lh of December 
1816, for the purpose of deliberating on the 
most proper method of remedying the present 
distresses of the country, with a ftiU report of 
the speeches on that occasion ;*' which printed 
tract or statement did contain a number of se- 
ditious and inflaipmatory remarks and asser- 
tions, calculated for the purposes above men- 
tioned ; and, in particular, a report of the 
said speech of you tne said Alexander M'Laren, 
with the passage aforesaid, in the same, or 
nearly the same terms ; as also the following 
wicked and seditious passages, viz. page ninth, 
. — " And a House of Commons — but the latter 
is corrupted ; it is decayed and worn out ; it 
is not really what it is called, it is not a House 
of Commons/' — Page tenth — " The House of 
Commons, in its original composition, con- 
sisted only of commoners, chosen annually 
by the universal suffrage of the people. No 
nobleman, no clergyman, no naval or military 
officer, in short, none who held places, or re- 
ceived pensions from government, had any 
right to sit in tliat House. — ^This is what the 
House of Commons was, what it ought to be, 
.and what we wish it to be ; this is the wanted 
change in our form of government — the Com- 
mons House of Parliament restored to its ori- 
ginal purity ; and this, beyond a doubt, would 
strike at the root of the greatest part of the 
evils we groan under at the present day."-*- 
Page eleventh, " la it any wonder, my friends, 
that this country is brought to its jpresent unpre. 
bedented state of misery, when the rights of the 
people have been thus wantonly violated 1'*-^ 
^age twelfth, " But let us come nearer home*. 
J^ok at the year 1793, when the debt amounted 
to two hundred and eleven millions, and the 
annual taxation to about eighteen millions ; 



when liberty began to rear her drooping head 
in the country^ when associations were framed 
from one end of the kingdom to another, com- 
posed of men eminent for their talents and 
virtue, to assert their rights ; when a neigh- 
bouring nation had just' thrown off a yoke 
which was become intolerable — ^what did the 
wise mien of this coavtry do? Why, they 
declaved war, not only against the French 
nation, but also against the friends of liberty 
at home.*' — Page twenty-ninth, " Our oppres- 
sors have taxed the very light of heaven ; and 
they seem surprised and indignant that we 
should not bear the insupportable burden, with 
which folly, corruption, and avarice, have 
loaded us, without reluetance and eomplatnl?-* 
— Page thirty-second, ** Their reverend hire- 
lings would convince you that you are suffering 
under the visitation of the Almighty, and 
therefore ought to be submissive under the 
chastenii^ atroke.''"-'Page thirty-fifth, ^ We 
have these twenty-five years been condemned 
to inceMant and unparalleled slavery, by a 
usurped Oligarchy, who pretend to be our 
guardians and repvesentatives, while, in fsLCi, 
they are nothing but our inflexible and deter- 
mined enemies.**—^' They have robbed ns oF 
our money, deprived us of our friends, violated 
our rights, ana abused our privileges.** — ** At 
present we have no representatives ; they are 
only nominal, not real ; active only in prose- 
cutmg their own designs, and at the same time 
telling us that they are agreeable to our wishes.^ 
— ^And you the said Thomas Baird having ob- 
tained a number of copies of the said printed 
tract or statement, cootaiDing the said falser 
wicked, and sedKioufi nasaages, and othcia of 
a similar tMidency, ana being altogether of a 
seditious nature, did, in the coerso oi the 
said months of December and January, and 
of February immediately following, at your 
shop in KUmamoek aimsaid, wickedly and 
feloniously sell, publish, and circulate, or cause 
to be sold, published, or circulated, many of 
the said copies thereof, at the price of 'fourpence 
each, or other small sum, one of which was 
then and there purchased by Hugh Wilson, 
weaver in Kilmarnock. And you the said 
Alexander McLaren and ThoDM» Baird having 
been apprehended and taken before WilUaai 
Eaton, esq., sheriff-substitute of the county of 
Ayr, did, in his presence, at Kilinamock, on 
the 26th- day of Febraary 1817, both and each 
of you emit and subscribe a declaration : which 
declarations, being to be used in evidence 
against each of you respectively, and the 
manuscript of nineteen pages, and the half 
sh^et of paper, tilled on the back, ** No* 5,*^ 
both referred to in the said declaration of 
you the said Thomas Baird, being to be 
used in evidence against you the said Hiomes 
Baird, as also three copies of the printed 
tract, or- statement, above mentioned, beie^ 
to be used- in evidence agaipst both and. 
each of vou, will be lodged in due time in, 
the hands of the clerk of the high court of 
justiciary, before which you are to be trieif^ 



si 



and Th&mas Bairdjbr S^khn, 



A. D. 1817. 



16 



ttat ywx nay have sn opportunify of Mefn^ 
the tane. At letst, times and places foresaid 
respectively, the said seditious speedi was 
wickedly aod feloniously delivered, ooBttibibg 
the said or aroilar wicked and seditious ex- 
pressions : and the said seditious tract or state- 
meat, coDtaioing the said seditious and in* 
dammaioiy paasages, and others of a similar 
tendency, was wicJkedly and felonioosly printed^ 
sold, pablished, and circulated, or caused or 
procured so to be, as above mentioned : and 
you the said Alexander M'Laren and Thomas 
Baipd are both and each. Of one or other of 
you, guilty thereof, actors or actor, or art and 
pait. All which, or part thereof, beins found 
proven by the verdict of an assize, beu>re the 
lord justice general, the lord justice derk, and 
lords commissioners of justiciary, you the said 
Alexander M'Laren and Thomas Baird ought 
to be punished with the pains of law, to deter 
others from committing the like crimes in all 
time coming. 

" H. Home Dbumkovd, A. D.*' 



LIST OF WITKK8SES. 



1. 



2. 



William Eaton, esquire, sheriff-eubstitQte 

of Ayrshire. 

Thomas Weir, sheriff-clerk-^epate of Ayr^ 

shine. 

3. Alexander Murdochj writer in Ayr. 

4. Amirew Fmnie, merchant in Kilmarnock. 

5. WUiiam Merrkj wrigbt there. 

6. Hugh Crmrfordf printer there. 

7. Thomas Murray, journeyman to the said 
Hugh Crawford. 

6. Jamer JohatsUme, muslin-agent there. 
9. David Ramsay Andrews, writer there. 

10. Hugh Wibon, weaver there. 

11. Jamn Samson, weaver there. 

12. David Bow, shopman to Thomas Baird, 
merchant in Kilmarnock. 

U. HoMx Dbummovd, a. D. 

LIST OF ASSIZE. * 

CoaMty of Edinburgh. 

Jtanes Watson, of Saughton. 
Charles Eraser, of Williamston. 
Alexander Falconer, baker in Dalkeith. 
William Crichion, glazier there. « 
WUUam Watson, farmer, Middle-Ksnleith. 
John Dodds, fanner, Saughton-mill. 
John Drysdale, farmer, Clermiston. 

Couttiy of Haddington. 

George Remtie, of Fantassie. 

Daoid JPringle, of Blegbie. 

David Skhrving, farmer at £ast-Garleton. 

Peter Sheriff', fanner at Drem. 

John Hukp, junior, grocer in Haddington* 

County of LinUthgow, 

¥atm&n Shmrpy younger of Houston. 

Jafei Stewart, of Birniy. 

James Gardner, junior, merchant in Bathgate. 

JbAit Colder, farmer at Drumcross. 

John Buttell, farmer at Mosside. 



CUy vf TAMnargh, 

WUliam MoriWi^ jeweller, South-brjd'ge-dtrcet^ 
Edinburgh. 

Walter Lamb, upholsterer in Edinburgh. 

Archibald M'Kinlay, haberdaiihcr in Edin- 
burgh. 

John Baxter, confectioner there. 

ShatTp Callender, clothier there. 

William PiUtison, junior, haberdasher in Edia* 
burgh. 

Andrew Mellis, haberdasher there. 

John Pollock, insurance broker there. 

James Hbtc(/ini, jeweller tliere. 

John Drtanmona, manufacturer there. 

Alexander Andehon, general-agent there. 

James Spence, perfumer there. 

Peter Brown, hnen-draper there. 

William Kennedy, glover there. 

James Gilchrist, clothier there. 

Charles Howden, shoemaker there. 
, Edward XxUchrist, haberdasher there. 

James Virtue, Button-manufacturer there. 

James Richmond, insurance-broker there. 

James Stoddart, wine-merchant there. 

Andrew Wauchope, turner there. 

Town ofLeith, 

James Duncan, ship-owner in Leith. 
James Harper, corn-merchant there. 
Wm. Uumay, wine-merchant there, 
/osaet JSkitmer, cooper there. 
John Oowan, wood*4nerchant there. 
Charles Murray, wright there. 
John SomeruUle, tanner tliere. 

Ad. Gillies. 

D. MoKTFBNUY. 

David DduoLAS^ 

I/frd Justice Clerk. — Alexander M*Lareti 
and Thomas Baird ; What do you say to the 
libel ? are you guilty or not guilty ? 

Ptfne/i.— Not guilty. 

The following Defences had been given in. 

Depbvcbs for Alexander M'Laren, Weaver in 
Kilmarnock, to the Indictment at the in- 
stance of Alexander Maconochie of Mea- 
dowbank, his Majesty's Advocate, for his 
Majesty^s interest, for Sedition. 

^'The panel has been employed horn his 
early youth in his trade as a weaver. He has 
always preserved the most sober and orderly 
habits, and^ if necessary he could bring forward 
complete proof of his uniform and steadjT 
loyalty. He never was engaged in any riot or 
disturbance whatever, and never was connect- 
ed, or accused of being connected with any of 
the societies, or combinations of men formed 
for unlawful purposes, or whose objects have 
been regarded with suspicion. He was a vo- 
lunteer in the Glasgow Highland regiment 
during the whole period of its establishment, 
and when the volunteer system was put an end 
to, he transferred^ his services to the local 
militia. During the greatest part of his service, 
he was a serjeant, a situation which he ob- 
tained by Ids good conduct. 



71 



57 GEORGE III. 



Trial ofAktander M'Lareu 



C8 



U 



Of lale yeaiiytlu^mieliamoBgiiiaDyoUiierty . 
lamented the distresses of the ceuotiVy from 
which he himself had severely suiTerea in his' 
situadbn and prospects. He tiierefore approv- 
ed of the petitions, which were presented in 
such numhers to his royal highness the Prince 
Begenty and the two Houses of parliament, the 
object of which was to obtain relief. 

** A meeting was held near Kilmarnock in 
the month of December last, at which a great 
multitude of people attended, for the pnrpose 
of considerinff of the expediency of petitioning 
his royal highness the Prince Ilegent and the 
Houses of Parliament, upon the present dis- 
tressed state of the country, and the subject 
of parliamentary reform. The panel was pre- 
sent at that meeting, and made a short 
speech, not in the terms alleged in the libel, 
but in other tetms, which appeared to him 
to be warranted by law in such a case. 
The meeting was afterwards addressed by other 
persons; certain resolutions were agreed to; 
petitions were drawn out, addressed to the 
Frince Regent, and to the two Houses of par- 
liament. These petitions having been signed 
by a great number of persons, were sent to 
Ix)ndon and presented. The petitions ad- 
dressed to the two Houses of Parliament were 
presented, read, and ordered to lie on the table 
of each house. In his speech, the panel did 
nothing more than lawfully recommend the 
said petitions^: and he denies that he is guilty 
of the crime of sedition. 

^'The panel took no charge whatever of 
printing the pamphlet produced with the libel ; 
and he finds that his own speech is inaccurately 
reported. 

** It is an evident misconception, that such 
a speech, spoken at a lawful meeting for lawful 
purposes, was calculated to degrade and bring' 
into contempt the' government and legisla- 
ture, and to withdraw therefrom the confidence 
and affections of the people, and fill the realm 
with trouble and dissentions. If there are 
grievances or abuses, or such men as bad rulers, 
or bad ministers, those who complain against 
them, or petition against them, do only exer- 
cise their legal rights. The panel, while he 
was disposed to petition for redress of griev- 
ances, was filled with the same reverence for 
the legislature and all its different branches, 
and for the government of the country as 
established by law, that is impressed on the 
mind of every good subject. 

'* Under protestation to add and eik. 

" John Clekk. 
** J. P. Grakt. 
" James Campbell." 

LIST of exculpatory WITNESSES. 

Hugh WiUon, weaver, Kilmarnock. 
Jumet Samson, ditto, ditto. ' 

James Johnstofie, muslin -agent there. 
John Kennedif, schoolmaster there. 
John £/!ac^iMW(^ Vool-spinner there. 



Dbfs«cs8 for Thomas Baiid, to'the IndicUnent 
at the instance of his Majesty's Advocate 
for the Crime of Sedition. 

** The panel denies that he is guilty of the 
crime diarged against him. He was not a 
speaker at the meeting mentioned in the 
indictment, and neither spoke mor v^rote any 
of the words there set forth. He also denies 
that he printed or published any of the said 
words; and if any circumstances shall be 
proved tending to connect him with the publi* 
cation or sale thereof, he has no doubt, both 
from the tenor of the said words and the nature 
of his concern with them, that it will be 
apparent that he is entirely guiltless of the 
crime here charged. 

*' Under protestation to add and eik. 

•* F. Jeffrey. 

** H. COCKBURH, 

** J. S. Stewart.** 

list of exculpatory witnesses. 

John Andrews, chief magistrate of Kilmarnock. 
DaM Hamsay Andrews, writer there. 
WaJUer Andrews, writer there. 
Andrew Finnie, merchant there. 
James Johnstone, muslin agent there. 
John Brown, writer there. 
Baiiie William Brown, manufacturer there. 
John WilUe, assessor of taxes there. 
Bjoberi Howie, merchant there. 
Tfiomas Murray, printer there. 
The Rev. James Kirkwood, relief minister there,, 
residing at Riccarton. 

Lord Justice Clerk. — ^Have the counsel Cor 
the panels any objections to state to the 
relevancy of this indictment ? 

Mr. Campbell, — I appear on behalf of the 
panel, Alexander M'liiren. It is not my 
intention to state any objections to ttie relevancy 
of the libel, but to explain to the Court and 
Jury the nature of the concern which he had 
in the transactions now brought before this 
Court. At the same time, it is proper I should 
state, that we who are his counsel hold it to be 
the undonbted law — and law which has never 
been questioned in this part of the country — 
that it is the province of the jury to consider 
both the facts and the law of the case — that it 
is for them to say whether the facts charged in 
the indictment are proved in the course of the 
trial, and if they find them proved, whether 
these facts do amount to the crime charged. 
And that being the case, we hold that we are 
not deprived of the benefit of any pleas which 
we may afterwards maintain, by any interlo- 
cutor of relevancy now to be pronounced. 

I conceive also, that in justice to the panel 
and in justice to the opposite side of the bar, 
(who always meet me with liberality, and whom 
I wish to meet in the same manner), I should 
at once and openly state the nature of the 
defence we intend to maintain, and should say 
something of the history and character of the 
I panel. 



^ 



and Timtu Bakd/or SeUition. 



9} 

Tlie paaely after learmng the tnde of m 
*«reayer, to the coooty of Perth, went to 
Glasgow, where be continued a good many 
yean. He acted as assistant foreman in a 
■lecrantile bouse, and during the whole of his 
-engagement gave entire satisfaction to his 
employer. Seventeen years ago he entered 
into the Highland corps of yolunteers in tluit 
city, and soon rose to the rank of serjeant, and 
continued with the corps till it was disbanded, 
and the volunteer associations were discon- 
tinued. He next went to Kilmarnock, where 
a great many weavers are occupied in working 
lor the manufacturers of Glasgow ; and« at the 
same time, he again gave his services to the 
public, by entering into the local militia corps 
of that district, in which corps |ie continued 
down to 1812, when the period of its service 
expired. And not only was there no complaint 
against him during all these periods, as a man 
either troublesome or quarrelsome, but he 
maintained in Kilmarnock, during the period 
of nearly eight years during which he lived 
there, a character remarkable for sober habits, 
attachment to good order, and to the govern- 
ment of the country ; and last harvest, during 
a riot which occurred about a scarcity of meal, 
so far was he from taking any part in the riot, 
that when a house was to be attacked, he put 
himself forward along with two constables in 
order to protect the house. He enjoyed the 
same decent, respectable, and good character, 
till this charge of sedition was brought against 
him. 

He does not deny that he attended the 
meeting in December. His means of subsist- 
ence, and those -of his neighbours about him, 
had been graduslUy declining. They had ar- 
rived, before the period I speak o% at, 1 hope, 
their worst state of distress ; for he worked 
fifteen hours a day for 5s. a-week, although he is 
not only one of the best workmen, but so expert 
as to be able to execute the best work in the 
shortest time. And I will prove, that other 
workmen who could execute as' good work, 
bot who were not so expert and expeditious as 
my client, were able to obtain only 3s. a-week. 
The panel admits that in this distress he began 
to think of the causes which had reduced his 
neighbours and himself froin a condition in 
which they were prosperous and happy to a 
state in which they could scarcely gain the 
means of subsistence ; he confesses he came 
to be of opinion, tfiat the evils were partly 
owing to toe excessive taxation which had 
been imposed on the country; and he and 
some othera thought it right to call a meeting 
of the inhabitants of the place where he resided, 
to consider the propriety of a petition to the 
legislature on the subject of their distresii^ its 
causes, and what appeared to them to be the 
proper remedies; 

Thev conceived, that to do this was their 
nndouDted right ; and it will not be denied on 
the opposite side of the bar, that such was 
their right. There is no charge in the indict- 
ni^t that the meeting was illegal. .It was a 



A. D. 1817. 



uo 



I 



legal neeting which they were entitled to 
hold : it was for a legal purpose ; there was no 
harm in going there; and every person waa 
entitled to state the grievances he felt, and in 
a manner that might induce the meeting to 
take constitutional measures for what he con- 
ceived would bring them relief. Tl^ panel 
did not intend to take any part in the proceed- 
ings, nor to open the meeting as he did. fiut 
those persons who were to have opened the 
proceedings, were not equal to the task wbea 
the time came, and he was asked to undertake 
what was refused by the others. He went into 
a house in the neighbourhood, and hastily 
threw upon paper some observations which he 
wished to submit to the meeting. He did ad- 
dress the meeting, but he did not submit to it, 
— and there were not contained in that paper— 
what are cited as offensive expressions in the 
last part of the indictment. 

As to tl^e passage about a corrupt adminis- 
tration, which is cited in the indictment, it was 
in the manuscript, but was not spoken in the 
field. I admit that the manuscript afterwards 
went into the hands of the committee of the 
petitioners, at the request of the committee, in 
order to be printed in an account of the pro* 
ceediogs, but he had no concern in printing 
that account. 

With regard to the expressions which are 
charged as seditiously directed against the 
legislature, we shall satisfy the jury, and shall 
show your lordships, ^hat giving them a fair 
construction, they contain nothing improper 
against any of the orders of the state, against 
the King, the House of Lords, or H'ouse of 
Commons. In sound construction, the ex- 
pressions apply only to the administration for 
the time, and every person at such a^ meeting 
is entitled, if he thinks it right, to attack the 
policy, and conduct of ministers. I need not 
enter into the question, whether there has 
been roal-administration or not; but every 
person feeling himself aggrieved is entitled to 
state his grievances, and more particulariy at 
a meeting convened for the purpose of apply- 
ing to the legislature for redress. This will 
not be denied. And what was done in conse- 
quence of this meeting, and of the speeches 
which were made there? Every thing was 
conducted in a regular and orderly manner;, 
no injury was done to any property or to any 
person ; the only consequence of the meeting 
was, that three petitions were resolved on, one 
to the Prince Regent, another to the House of 
Lords, and the third to the House of Commons ; 
which last petition, when presented to that 
House, was ordered to be brought up and to 
lie on the table. This i* proof that the peti- 
tions contained nothing that was offensive to 
the Prince Regent, nothing seditious, nothing 
offensive to the Houses of rarliament. Every 
thing that resulted was legitimate and proper. 

Taking the whole circumstances into consi- 
deration, it clearly appears, that th# first pas- 
sage objected to, relates to the measures of 
ministers ; and I will prove even by witnesses 



11> 



57 GEORGfi III. 



Trial rfdUmnitr M*Liiren 



112 



for tlie cTOwn> th^t, bo fa» was my dtent from 
employing any exprieasions disrespectliil to- 
wards the head of the govemme&t, that he did 
quite the reverse, and ftpoke with the titmost 
respect of the Prince Regent. 

This being the situation of the maCtefy and 
my client having done nothing but what he 
was entitled to do, we ^all show that the lan- 
guage he used was no other than what he was 
completely authorised* to use. In numerous 
petitions to parliament, much stronger lao** 
guage has been used, and found not only to 
be not seditious, but to be not disrespectful to 
the House. What was the language held when 
Parliamentary Reform was llrst talked of at 
the Thatched-house-tavem ? in the second 
resolution of that meeting it was said, ** This 
meetipg, considering that a general application 
by the collective b(^y to the Commons Ilouse 
of Parliament cannot be made before the close 
of the present session, is of opinion, that the 
sense of the people should be taken at such 
times as may be con? enient this summer, in 
order to lay their ^veral petitions before par- 
liament early in the next session, when their 
pmposition for a Parliamentaty Reformation, 
wUhout ufkick neither the liberty of the natkm <wn 
be preserved, n&r the permanence of a wise and 
virtuous administration can be secured, may re- 
ceive that ample and mature discussion which 
so momentous a question demands/' * These 
are strong terms, and imply, that, without le^ 
formation in the representation of the people, 
the liberty of the subject is in danger ; and if 
there is any doubt as to the meaning of the 
passage, look to the letter written by Sfr. Pitt 
to Mr. Froet, in which it is said, that Reform 
'^ is essentially necessary to the independence 
of parliament, and the liberty of the people.'' f 
Down to this day strong language is always 
used in petitions on that subject and never 
objected to, except when the House of Com- 
mons is denied to represent the people, or 
matter is introduced against the House that is 
not relevant to the object of the petition. 

It has been laid down by constitutional 
lawyers and statesmen, by lord Thurlow, by 
Mr. Pitty and Mr. Fox, that where the language 
is expressive of the grievance, however strong 
it may be, it is justifiable. I therefore submit, 
that, as it is competent to put such language 
into a petition to parliament — ^as such lan- 
guage has not been held objectionable in the 
House of Commons, it cannot be considered 
as seditious, or as tending to bring the legisla- 
ture into contempt. If such language is law- 
ful in petitions to parliament, then it must be 
held lawful in the speeches and resolutions 
made at meetings pi^paratory to such peti- 
tions. For there would be an inconsistency 
and absurdity in saying, that such language 
might be lawfully used in a petition, which if 
used in discussing whether it should be in- 
serted in the petition would be unlawful. If 

> ■ ■ ■ » 1 II I H III ■ .1 W^— —■ I 11 III ,11 .— .PW«— .^W^MMW^— — " 

* 1 How. Mod. St. Tr. 493, note. 
t 1 How. Mod. St. Tr. 494, note. 



it should be neeessary, we shall make out to 
the satisfaction of your lordships and the jury, 
thatthe language, even as stated in the indid- 
ment, does not amount to sedition. 
Having stated thus much, I conceive I have 

3«ned the nature of the defence we mean to 
ead, at sufficient lehgth to make the oppo- 
site sHle of the bar aware of the nature of^our. 
defence, and I think it unneceisary to detain 
your lordships any longer. 

Lord Justice Clerk. — ^It is a perfectly fair 
and distinct statement. 

Mr. Mrey,'^! appear here in behalf of 
Thomas JBaird. k suppose we are all agreed, 
that it it the right and province of ^the jury to 
take into consideration both the facts and the 
law of the case; first, to find whether the fiicts 
libelled are proved ; and then to judge of the 
import of the facts so proved. We have no 
desire to quash the trial in any prelimioaiy 
stage of the proceedings ; and, notvcithstand* 
ing some incorrect stater, ents in the libel, as 
we do not wish to shrink f^om investigation, 
we shall not trouble your lordships vriUi any 
preliminary objections to the relevancy. 

I have little farther to state in addition to 
the written defences. Mr. Baird is a ^mer- 
chant in Kilmarnock, and has always main- 
tained, not only an irreproachable but a re- 
spectable character in the estimation of both 
his superior and equals. He also has served 
his country in a military capacity, and held, 
successively, commissions in different bodies 
of volunteers. In the last corps to which he 
vras attached, he served down till ihe dissolu- 
tion of the volunteer system in 1813, when the 
allowances which had been given to them 
were taken «way ; and his conduct, character, 
and sentiments, were always considered loyal, 
respectable, and praiseworthy. 

He also had entertained ideas, the wisdom 
and propriety of which cannot here be made a 
subject of discussion : But to what he consi- 
dered as defects in the constitution, he wished 
to apply none but constitutional remedies. A 
spectator -of the general distress around him, 
and a participator in it, he believed that the 
evil was ascribable, at least in part, to a de- 
fective representation in the Commons House 
of Parliament; and he therefore thought it 
proper to present a respectful petition to the 
legislature on the subject. He attended the' 
public meeting which assembled for that pur- 
pose ; but he did not take any part in tlie dis- 
cussion, not being gifted with powers of 
oratory, nor wishing to obtrude himself on the 
public notice. He did however attend the 
meeting, and he heard the speeches — which 
were not so violent as they have been repre- 
sented. 

Some expressions were at the time repit)- 
bated by him, as tending to throw an odium 
on the geneml cause of Reform ; and after- 
wards, when it was determined that some 
account of the proceedings should be publisbei^, 
and the orators gave in t^if tpeeckes to the 



131 



and Thiuu Bamlfor Sidiliint. 



A. D. 1817. 



CM 



commitee for pablieatioD, he repeated his oik 
jectioDs ftgatost printing Mveral passagM which 
appeared to him to be improper ; bttC he was 
oTemikd by a majority ot the committee, who 
wished a full publication of the proceedings. 
As the fuoda of the petitioners were low^ it 
eocurred to the committee that some small 
pittance might be.c<41ected from the publiea- 
tion, to defray the expenses necessary for the 
pfepaiatioa dT the petitions. In this way, he 
oonaemed to the publiealioRy but at the same 
time protested against puUisluDg any impropet 
ezpccssions ; but not hayiag any idea (as such 
a oiscoveiy indeed had not then been made in 
any quarter)^ that the expressions, tfaoagfa 
censarable^ were of a naittre to infer criminal 
Gonseqaeneesy be gare no critical attention to 
the minute contents of the publication, nor 
considered himself responsible for them. In 
Older to forward the end in ?iew, which was 
not to excite violence or sedition, but merely 
to raise money, it was determined that the 
members of Ae committee should distribute 
and sell as many copies of the pamphlet as 
possible ; and my client agreed to sell some of 
^ibem. 

Tbese are the facts of the case. As to the 
leleTancy, mnch will depend on the interpre* 
tation to be- given to the words libelled on. 
We do not think it necessary at present to say 
any thing farther on that point, as we shaU 
prove that the expressions used were materially 
aifierent from those lib^ed in the indictment. 
When tba tets are disclosed in the evidence, 
we shall have a fitter opportunity for remark* 
ing on them. 

Lord AdvoaUe. — ^It is unnecessary for me to 
say any thing as to the candid statement 
which has been made on the other side of the 
bar. I admit that it is not only the right of 
the jury, but that it is their bouaden duty to 
hay upon their oaths, whether the natter 
charged is sedition or not. In that I concur 
with my teamed friends, and therefore I necfd 
say ttodiing more. 

Lord Juttice Clerk. — ^Your lordships have 
heard what has been said on behalf of the pri- 
soners, and what has been said by the lord 
advocate. I have to ask your lordships, whe- 
ther you have any observations to offer on the 
relevancy of this indictment. 

iiovd Hermand. — ^I am of opinion that the 
indictment is relevant ; and I think there can 
be little doubt on the point with those who 
bear me. The learned gentleman who opened 
the defence admitted, that an attack on parlia* 
ment oonstitntes sedition; adding, that his 
client did not apply his expressions to the 
legislature, but to the ministers of the day. It 
nay be so, but that is tiot what is stated in 
this indictment, to which alone I can attend at 
ptesent. Past of the chaige goes veiy deepv 
They» iMt on pretence of a dntiful petition. 
Sttch pretences ace always made. T^% your 
lovdships will attend to what we find stated : 
^ Ijdt Of lay onir petitiena at the fwit of &e 



throne, where sile o«r august prince, whoso 
gracious nature will incline his ear to listen to 
the cries of his people, which he is bound to 
do by the laws of the country." AH this is 
extremely good ; but what follows ? " But, 
should he be 80 infatuated as to turn a deaf 
ear to their just petition, he has forfeited their 
ellegiaace. Yes, ray fellow-townsmen, in such 
a case, to h^U toUh ow aUtgUmce/' Is that not 
sedition? Accompanied with an overt act, 
would it not be high treason ? I have no hesi- 
tation in saying it would. 

Things may turn out differently on the proof 
from what is represented in the indictment ; 
and I should n^ice to find it so. But, with 
regard to the speech and the publication, aa 
here stated, is uiere not a direct attack on tho 
legislature ? Another pflMsage is : ''A House 
of Commons, but the latter is corrupted ; it i» 
decayed and worn out; it is not really what it 
is called; it is not a House of Commons.^ 
We are told this is only an attack on the mi- 
nisters. It b an attack on the House itself. 
Any petition containing such expressions, I 
always understood, would be rejected by the 
Houee of Commons. " At present we have 
no representatives ; they are only nominal, not 
real; actite only in prosecuting their own 
designs, and at the same time telling us that 
they are agreeable to our wishes.'' Is that not 
a broad attack on the legislature T I shsll bo 
glad if the facts charged are not made out^ 
They cleaity amount to sedition as they are 
stated. 

Lord GiUieSj-^-l concur in the opinion which 
I have now heard, so far as to think the indict- 
ment relevant. I have no doubt that it ia 
relevant, and that the ordinary interlocutor 
must be pronounced. The indictment states, 
that at a meeting '* attended by a great multi- 
tude of persons, chiefly of the lower orders," 
one of tae panels delivered a certain spee<^ 
which speech was afterwards ciixulated by the 
other prisoner. » 

As to the nature and objects of the meeting, 
no information is given in the indictment ; I 
must therefore hold it to have been a lawful 
meeting. But the libel goes on to state, that 
^ panel " wickedly and feloniously delivered 
a speech containing a number of seditious and 
inflammatory remarks and assertions, calcu* 
lated to degrade and bring into contempt the 
government and legislature, and to withdraw 
Uierefrom the confidence and affections of the 
people, and to fill the realm with trouble and 
dissention.'' This is certainly a charge of 
sedition ; and, if the expressions cited in the 
indictment were delivered for the purpose 
there statikl,. they must bo regarded as sedi*> 
tiotM. I need deliver no opinion farther at 
present, for the facta chaiged in the indict- 
ment, an^f stUl more, the wieked and febniou» 
intentione therein aseribed- to- them, are denied 
by the panels. AJl these matters remain to be 
the subject of proof; and I should be arvogiat- 
ing to myself the province of the jury and Of 



w 



57 GEORGE IIL 



Triid ofAlexatukf M*Larnt 



[16 



your lordship, if I said aaj thing farther at 
this period or the trial ; for after the proof only 
can any satisiactory opinion be given on the 
subject. 

Lord PitnttUy,—^Swm 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 
panels 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 shal) 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 indict- 
ment is not relevantly laid. 

ThMefence has been very properly explain- 
ed by the counsel for the panels ; 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 indict- 
ment ; and I have no hesitation in saying, that 
in my opinion, it is relevanf ; nnd that, there- 
fore, the ordinary interlocutor should be pro- 
nounced. 

The major proposition of the indictment 
charges 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 reg^ding it was argued, 
and the objection was repelled. I allude to 
the case of Sinclair.* It is known to every 
lawyer that sedition is a crime recognised by 
the laws of this country. It is a crime, in- 
deed, the trial and punishment of which must 
be coeval with government. 

It IS stated that the one panel made a speech 
which contains inflammatory remarks and se- 
ditious expressions, and that the other panel 
circulated a pamphlet containing that and 
other seditious speeches. Paragraphs of it 
have been read, and I will not consume time 
with reading or commenting on any^f 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 tendency of (he 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 panels are correct in 
stating, that it is the province of the jury ulti- 
mately to determine, not only as to the facts of 
the utterance and the publication of the ex- 
pressions mentioned in the libd, but also with 
regard to the law, whether the expressions are 
to be held seditious or not. On that point 

— ... 11 1..I 1 I M I ., I, I I ,1 III II I , I I 

* See the debate on the Relevancy of the 
Indiotment in Smdair's wse^ 2 Blow, Mod. St. 
Tr. 784. 



there can be no doubt; atid 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 in- 
stance whether the expressions complained of 
appear to them to be seditions, and to amount 
to the crime of sedition ; and on this subject I 
cannot entertain the shadow of doubt. 

Lord Retton. — I have no dpubt as to the re- 
levancy of the indictment. We have nothing 
to do at present with the truth of the state* 
ments in it. The only question now is, whe- 
ther the averments of the public prosecutov 
are put in proper shape and terms in this 
charge. The jury will decide not only on the 
bare fhcts^ but on the legal import of them, 
and will say whether the panels 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 circumstancesy which, if proved, 
amount to sedition. His averments amount to 
this, that what was said and published was not 
only calculated to produce pernicious conse^ 
quences affecting the government and legisla-^ 
ture, but must have been meant for seditious 
purposes. The indictment states, that the pur- 

r>se of the panels was vricked and felonious; 
consider that the speech said to have been 
delivered by one of tne panels 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 panel 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 Bannookbum. What were the feelings 
meant to be excited in the audience ? He was 
attempting to degrade the government, in 
order to stimulate 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 t1|e Prince Regent. But what 
does he add ? ** Should he be so infatuated as 
to turn a deaf ear to their just petition, he has 
forfeited theit 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 employ- 
ed ; but who is to judge whether the petition 
is just ? Were-4l)09e at the meeting to judge ? 
It was in efiect, saying, if our petition is not 
listened to, we are alMolved from our alle* 
glance. If the expressions shall be proyed^ 
Uie language is seditious in a high degree. • 



171 



ttmi T%omag^i^irdfir SkdHwn. 



A. D: 1817. 



LIS 



Lord Justice Clerk, — I entirdy concur in the 
Opiiiiong which have been deliyered as to. flie 
wofiaee and doty of the jury in a case of thi» 
kod. It XI not necessary ror me to state any 
tfaioff further at present, than that no douU 
can he entertained that this indictment is rele» 
TBnt. 

Alexander H^ren and Thomas fiaird : 
Attend'to'tfae interlocutor of the court as to 
the relevancy of this indictmcpl. 

VOL. XXXIII. » 



But ibis pand is not only accused ef ex- 
pressing himself in this seditions manner wfiile 
in the beat «f addressing his audience, but he 
is also said to hare delivered up Uie MS. of his 
speech' in order to be printed. If thisbe 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 exousablCy if 
momentarily not master of himself, but he af- 
terwards did the utmost in his power to circu* 
late this sedition. It was not likely that the 
speech would be heard of beyond the place 
where it was delivered, witliout some eflbrt 
yrete used 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. Baiid be- 
came the trumpet of that meeting, and is said 
lo have circulated an account of this very 
speech, which is charged as having been de- 
livered by McLaren. If the public prosecutor 
proves his averments, he makes out that a di- 
rect attack was made on the legislature, and in 
strong terms oa the House of Commons. " No 
nobleman— no clergyman — no naval or mili- 
tary 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 coud- 
t^is brought to its presentunprecedented state 
Of misery, when the rights of the people have 
been thus wantonly violated?^' And in ano- 
ther place it is said, ** we have these twenty- 
five years been condemned to incessant and 
unptoalleled slavery, by a usurped oligarchy, 
who preteqd to be our guardians and represen- 
tatives, while, in £act, they are nothing but our 
inflexible and determined aienries." — ** They 
have robbed us of our money, deprived us of 
&aa friends, violated our rights, and abused 
our privileges." — *• At present we have no re- 
presentatives ; they are only nominal, not real ; 
active only in prosecuting their own designs, 
and at the same time telling us that they are 
i^greeable to our wishes." If this is not a di- 
rect 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 
lelevancy of the indictment, and then a jury 
w31 judge both of the law and the fiicts of the 
case. If they think neither of the panels used 
these expressions, or circulated them, or if tlrey 
are of opinion that they are not inflammatory 
and seditious, it is thenr part, not ours, to find 



*^ The Loid Jaetiee Qezfc and lords com- 
missioners of justiciary having considered the 
crimifMd indictment, raised and pursued at ihe 
instance of bis majesty's advocate, for his flKa« 
jesty's interest, against Alexander McLaren 
and Thomas Baird, panels, th^ find the in- 
dictment relevant to iiifer the pains of law ; 
but allow the panels, and each of them, to 
prow all fecto and eiocamstances that may 
tend to exculpate them, or either of them, of 
alleviate their guilt, and remit the panels, with 
the indictment as fouad relevant, to the know- 
ledge of an assize. 

« 0. BoTii, I. P. D." 

The following persons were then named to 
pass upon the assize of the panels. 

James Watson^ of Saughton. 
John Dodds, farmer at Saughton Mill. 
John DrysdaU farmer, Ciermiston. 
Daoid Pringle, of Blegbie. 
J<^ Stewart, of Binny. 
John Colder, farmer at Drumcross. 
John Rusielf farmer at Mosside. 
William Marshall, jeweller, South Bridge^ 

Edinburgh. 
Archibald JMP^EmZtry, haberdasher in Edinburgh. 
John Baxter, confectioner there. 
Jamei Hawden, jeweller there. 
William Kenne&f, glover there, 
WUUam Umdsay, wine-merchant, Leith. . 
John Gowan, wood-merchant there. 
Jame$ Stoddart, wine-merchant, Edinburgh. 

Lord Justice Cktk, — Are the dedaratioiis of 
^e prisoners admitted f 

lir. Oerk. — ^Yea, my loid. 

SVIDEKCX FOR TB£ CaOWIT* 

Andrew Tinnie sworn. — Examined by 
Mr. Drummand, 



You are a merchant in Kilmarnock ?— Yes. 

Do you know the Dean Park in the vicinity 
.of Kilmarnock ?-^I do. 

How far is it firom Kilmarnock ? — ^About half 
a mile. 

Do you remember that a public meeting 
was held at the Dean park on the 7th of Dec« 
last?— I do. 

Was there a great number of persons at it ? 
—'I think about 4,000. 

A great number of the lower orders?— 
Yes. 

Do you remember that speeches were made 
at that meeting ?-~ Yes. 

Who opene4 the business? — Alexander' 
M*Laren. ^ 

Is that the person there? — It is. 

He made a speech ?-^Yes. 

What was the speech about, sir 7-^ About 
the business that the meeting was called for^* 
which was for the purpose of deliberating on 
the best mode of petitK>ning for parliamentary 
reform. 

Do you remember any part of his speech 
any of the words that he us^ ?— Tfothing par- 
ticular, except one passage near the end. ^ 

C 



r 



19] 



£7 GBORGE III. 



7rMf qfAtumndfff M*Larem 



[20 



Repeat -thd passage as near as you rametDber 
it?— «< We wiU lay our petidons at the foot of 
the throne (or let us lay^ I do not remember 
exactly which), where stts-our august prince, 
whose generous - nature will incline his ear to 
hear the cries of hi» people, which lie is bound 
to d6 by tbe constitutional laws of the country ; 
and we * are thereby^ •bound to give him our 
allegiance. But if he should be so infetuated 
as to turn a deaf ear to the ireneral cries of his 
people (or Toiee of his people^ I do not know 
which), to hell with allegiance.^ 

Is that the whole of the passage P — ^The 
whdie of the- passage, as fur a» I recollect. 

Lord AdoocaU.—! wish to know whether 
M'Lareu in his speech stated that a number of 
resolutions had been drawn up by the com- 
mittee, which were about to be read' f— Yes, 
about the close of his speech, after the expres- 
sion I alluded to, I think. 

Mr. Drummond. — Did he recommend any 
body to be called to the chair of the meeting ? 
— He said the committee unanimously recom- 
mended Mr. Johnstone. 

And did he propose him to be elected to the 
chair ? — Yes, I understood so^ 

He was called to the chair ?— He was called- 
to the chair. 

Did vou see Mr. Johnstbae in the other room 
to-dayr— Idid. 

Did you ever see a printed account of 
M'Laren's speech? — ^Yes. 

Was' it in an account of the proceedings of 
the meeting ?L— In a^ pamphlet. 

Is that the pamphlet? 

[The pamphlet wak* handed t^the witnessi] 

That is one of them. 

The rest are the same ?—I understood so. 

Did you read McLaren's speech ? — ^YeS. 

Did It appear the same as that delivered at 
the meeting ? — No ; there was a difference par- 
ticularly as to that passage. 

L(trd JvUiee Cterib— You mean the passage 
in reference to allegiaoee? — ^Yes, my lord. 

l»Tr. Dr&mm(M<f.^~Wnr you point outtaus 
particularly what is the difference between that 
printed passage and what he said ?^— There is 
one part which I think is omitted. 

What is that ?r~" And we are thereby bound 
t6 give him our allegiance.'' 

Do you observe any other difference? — I 
thinK tnat instead^ of ** to their just petition,*' 
he said, ** to the general cries or roice of his 
people.*^ 

Lord JuUk€ Cierk.-^^Jvai petition" are the 
words you see there ?'-^Yes, my lord. 

Mr! I^rummond, — Any othfer ' difference?— 
The words *' he has forfeited that allei^ance," 
were never mentioned that I beard ; and nor- 
thing that 1 remember, but ^ to hell with alle- 
giance.'' 

' Mr. Clmrk wisbed:tc^&iiow what the witness 
had said* 



Mr. Dnmmmd, — Tbe witness did sot hear 
the words ** he has forfeited that allegiance.** 

WUnen, — That is what I meant to say. ** To 
hell with allegiance," is all that I heard at the 
meeting. 

Had you any charge as to printing tliat pam- 
phlet? — I was appointed ta a charge about 
thej^rintinv^ but I never acted to it. 

Who had die charge along^with you T — ^Mr. 
Bairdl 

And who else ? — Mr; Walter Andrew. 

A Writer?— Yes. 

You took no charge though you were ap- 
pointed to superintend the printing ? — I was 
appointed, but never was at uie meeting called 
for the purpose. 

How were you appointed to that charge? — 
By the committee. 

Was Baird a member of the committee ? — 
He was. 

Do you know who printed the statement oC 
the proceedings? — It was given in to Mr» 
Crawford, I understood^ 

Cburf,— That will not do. 

Mr. Drtdirmom^.-^Were you ever present at 
the printing f — I was, in Crawford's shop. 

Did you ever get any copies of the printed* 
statement from Crawford ?^— I did- get from: 
Crawford printed copies. 

Court, — Did you buy them ?<— I was to pay 
for them. 

Lord Etrmand. — Then you did buy them ^ 
— I did not buy them particularly. 

Mr. Drummond, — Do you know whether 
Baird sold any of them? — ^He did. 

t>id Baird ever tell you so i— He said hei 
got quit of them ; but he did not say he sold ' 
ttiem. 

Did he say he got quit of them all ? — ^He 
said so. 

Did he ever get any from you ? — ^About fonr 
doxen. 

They were of those you got from Crawford T 
—They were. 

Did you give him all you had ? — ^No, I had 
eleven or thereby left. 

Had you any conversation afterwards with 
Baird about those remaining?'— I am not 
certain if I had. I do not recollect at present 
if I had. 

I think vou said Baird mentioned he had got 

quit of all his. Did he make any remark on 

^ournot having got quit of yours ?— 'I said I had 

still eleven or thereby; and he seemed surprised 

as he had got quit of all bis. 

Lord Hermttnd,—W\aX did you understand 
by getting quit of them ? — Tlie committee had 
liberty to ger what they wanted ; and copiea 
ward given to them when applied for. 

Cotir^— The witness does not understand 
the question. Was any price taken for them f 
— I understood they were to be 4d. each ; thai 
this was fixed by the committee. 



dil 



wmi nomas Bairdjir SidHian, 



A. D. I«17. 



[33 



Wtre tliey disposed of by sale or by gift ? — 
I do not know woether Baird sold them or not. 
He was to pay for them. 

LordAdBoade. — Did you ever go to Craw- 
ford's with fiaird to inquire after the .publica- 
tion ? — I did. 

What did yoo ask ?— We asked if any of the 
pamphlets were ready. 

Which Off you asked ? — I am not certain. 

Yon both went for diat purpose } — ^Yes. 

Andrew Fimde cross-examined by Mr. Jtffrejf 
for Thomas Baird. 

Yon have mentioned that yon (wo wese both 
members of the committee for arranging about 
this meeting? — Yes. 

. Were there many other members ? — From 20 
^ 30> I think. 

• These were eonstituted before the meeting 
was held ? — Part. There were moK added a!& 
ierwaras* 

. Was any notice given to 4he magistrates 
about the meeting? — ^Mr. Baird and I were 
nominated to call npon the magistrates^ toin- 
£>rm them of the meeting. 

Yon went ? — ^I did not. Mr. Baird said, he 
went. 

Did he report that the magistrates had no 
-objeotions to the meeting ? — ^He did. 

Tbere was no interference of the magistrates? 
—None. 

Were yoopresent at the meeting? — ^Yes. 

Was Mr. Uaird there ? — ^He was. 

Did he speak ? — ^No. 

Did yon hear him make any remarks es- 
-preasing satis&ction or dissatisfaction -on what 
was said ? — ^I heard htm make a remark about 
the fMosage I was talking of in Alexander 
McLaren's speech coneemiDg allegiance. 

What did he say? — He said it was a pity it 
Jiad been spoken. 

He disapproved of it ?— Yes. 

Yon said, yoo, Mr. Andrew, and Mr. Baird, 
were appointed to take char|pe of the printiug 
«.of an account of the proceedings? — Yes. 

Was any motive alleged for the pdoting^ — 
At wasTor defraying me expenses attending 
the meetiog. 

Was there any discussion at the meeting of 
the commitiee about the proprie^ or impro- 
priety of printing the wnole of what had 
been so stated at the public meetiDg ?»Yes, 
there was. 

Did any body object to the printing at all ? 
— ^I think two were not for printing at all ; Mr. 
Jolmston, and Alexander McLaren. 

Was M'Lareo a member of Che committee ? 
—Yes. 

Did Mr. Baird take any part in that discus- 
jnon ?^I do not remember that he did. 

Was there any discussion ubout the propriety 
«f pnnliog certain parts?— Yes.. . 

Did Mr. fiaird take any part in that discus- 
«on?— Hedid. 

Was he for printing all the words ? — ^No, he 
not 

What words did he djeet tO| or what pas- 



sage ? — ^I do not remember any other -passage 
than that about allegiance in McLaren's 
speech. 

What did lie say as to that passage ? — 
That he would be inclined to keep it out alto- 
gether. 

Did he say any thing ^Ise about it? — ^I do 
not remember particularly any thing else ho 
said. 

Was that proposition of his adopted by 'the 
committee or not ?— No ; it was not. 

Did it appear to you, that Mr. 'Baiid ai>* 
proved or not of that passage? — He disap- 
proved of that- passage, and wished it to be l«t 
out. 

Did you understand that rii 4he members of 
the committee were to take copi^es-of thisstnte- 
ment, to forward the sale of it, and to account 
for the 4i. for each copy? — ^Yes; the com- 
mittee were at liberty to -get what tiumber 
they wanted, 'for the purpose of defraying the 
expenses. 

bid they all get copies^?— <I do not •know 
who did and who did not. 

Mr. Baird keeps a shop ?— Yes. 

Did aUlhe members of the -committee "keep 
shops ? — No. 

What kind of a shop is Mr. Baird's ?— A 
grocer's shop. 

Has there been any other generkl meeting 
since this in Dean Park?—None that I know 
of. 

Certain resolutions were adopted which are to 
be found in the printed statement, and peti- 
tions 40 parliament were, in coikformi^ to them, 
prepared and forwarded ? — Yes. 

Was 'there any disturbance or tumult at 
Kilmarnock since>that date? — I do not recol- 
lect of any. 

Do you recollect any disturbance recently 
before that, a riot about meal ? — ^Yes. ^ 

Before the public -meeting took place, about 
autuinn ?— Yes; I do not know the exact time 
when it was. 

Idond Aivooaie. — ^You said that Baird disap- 
proved of printing the passage about allegiance: 
do yon remember whether M'Laren said any 
thing, and what did he- state about that passage? 
— ^I think he said, that if the committee thought 
there was any thing wrong, he would rather it 
were kept out altogether. 
' That was as to At passagein his own speech ? 
—Yes. 

When Mr. Baird objected to printing the 
passage, did he stale his reasons why he 
thought it an improper passage to be printed t 
— The reason was not stated therei that I re- 
member ; but when he and I were talking of 
it by ourselves. ^ 

And what did he say ?— He said to me it was 
a veiy indecent expression. 

He slated liothing to the committee of his 
reasons ? — ^Not that I remember. 

Andrew Finme cross-examined by Mr. QtwU 
for AbeKender McLaren. 

I ask the witness to fook at the' printe4 



33] 



57 GEOKGIC HI. 



Trial ofAtvumitr M'Latm 



[34 



Speech, and find tbese vrofds, '' The fact b, we 
are ruled by mea only solidtoaa for their own 
aggrandisement"? — I see them. 

Were these words spoken?— I do not re- 
member. 

" And they care no further for the great 
l)0dy of the people, than they are subservient tu 
their accursed purposes.'' Was that spoken ? 
I do not remember. I paid almost no atten- 
tion to any part of the speech, except that about 
allegiance. 

How did it happen that you remember that 
passive so particularly, and none of the rest of 
the speech ? — ^It strudc me particularly. 

Then you do not mean to pronounce aa 
epinion as to aay thing that was uttered by 
M'LareDy except the passage about allegiance? 
—No. 

Do you remember what passed about the 
opeaiug of this meeting ? who asked McLaren 
to open it? — I do not reipember who asked 
him. 

Did he rolanteer, or was he requested to 
open the meeting ? — He was backward to open 
the meeting. 

And he was asked by the coomittee ? — He 
was asked by the committee. 

When was he asked ?->At a meeting of the 
committee. 

Lord Advocate. — How many days before the 
meeting? — I am not certain. 

It was some days f — ^It was some days, I 
think. 

Mr. Gerk. — Are you sure it was some days 
before the meeting ? — I am certiun ; for imme* 
diatefy or the night before the meeting, he 
said he was in doubts whether he would do it 
or not. 

Did you use any particular means to keep 
tlie passage about allegiance in your recoUec* 
tion ?— It struck me so forcibly at the time, 
the language was so ttrong, I kept it in my 
memory. 

You fipientioned other passages. What part 
p( the passage do you allude to just now ? Did 
you consider the whole passage strong ? — ^The 
word hell struck me. That was the particular 
part I thought was wrong. I did not consider 
.any thing wrong in the rest of it at the time. 

Did you write- down the passage P — No. 

Are you quite confident of your recollection 
of the whole of the passage f — I am quite oon- 
6deat it was very near to what I repeated. 
Whether the words, " cries," or " voice, were 
used, as I said before, 1 am not sure of; but I 
am confident as to the rest of the pasaage. 

LordAdvoeate. — At the meeting, had McLaren 
any paper with him ? — I saw none. 

Did you ever see any paper with his speech 
on it ? — Never. 

Did you ever hear him speak of the terms of 
it after it was printed ? — I recollect of him 
iayiag repeatedly, that the passage about alle- 
giance was a quotation fvom Shakespeare which 
came into his mind. 



When did he first say that— Was it at the 
meeting of the committee ? — 1 do not recollect 
of his ever saying that at the committee ; but I 
have heard him repeatedly say so. 

WUliam Merrie sworn. — Exaniined by 
Mr. Drummond. 

Are you a writer in Kilmarnock ? — Yes. 

Do you remember being at a public meeting 
held near Kilmarnock on the 7lh December 
last ?— Yes. 

Do you remember the speeches made at that 
meeting ? — Part of them. 

Who made the first speech? — Alexander 
McLaren. 

Is that the man behind me ?— Yes. 

Do you remember any part of his speech ?— 
Very little of it. 

Do you remember aay words near the oon- 
dttsion of it ? — Yes. 

Can you repeat them ? — The hindmost part 
of it was, ''^hell with," or '^Ibr such alle- 
giance." 

What allegiance was that be was speaking 
about ? — If I remember right, he was wishing 
the people to address their august soTereign ; 
and he meant their allegiance to him. 

Did he give any reason why this allegiance 
was to go to hell ? 

Mr. C/erfc.— He has not said that. 

Mr. Dnamnomd, — ^Why did he apply the ex- 
pression to such allegiance? What did he 
say ? — If 1 remember right, it was, ** if he 
tamed a deaf ear to the voice of his people." 

Did he say any thing about petitioning ?-~ 
Yes, he winied ^e people to petition their 
august sovereign. 

What more do you say of this speech ? — I do 
not remember more. 

Lord Ilermaad.^He has ^plained enough I 
think. 

Mr. J>iiiiffiioni.—Do yen remember any 
other part of his speech ? — No. 

Did he use any words to shew what his 
meaning was when he spoke of the voice of 
the people ? — Not that I remember of. 

Lord ^lAK)c«te.— You said he wished the 
people to address their august sovermgn ; and 
then you stated he said, ** if he turned a deaf 
I ear to the voice of his people." Did he add 
anything? — I do not remember wheUier he 
added any thing or not. 

After he used the words, ^ if he turned a 
deaf ear to the voice of his people," did he say 
any thing or not about " to hell with such aU 
legianoe ?** — ^That came afterwards. 

Lord Hermamd. — Did he mention in what 
way the voice of the people was to be express* 
ed ? — ^No, he wished the people to petition. 

Lord Advocate, — Did you, after this meetings 
see a publication called ** Account of the Pro- 
ceedings of the Public Meeting of Uie buf> 
yeiees and inhabitaatt of the town of Kil^ar- 



95] 



aid Tkomoi Baud fir 



h, D. )«}T. 



b» 



nock, bftld on Ihe 7th December iat6» . for the 
purpose of deliberating on the most proper 
method of remedjing the present distresses of 
^e conntTj, with a fnll report of the speeches 
oa that oeeasion"?— I never saw it» except 
•Be day Ijisgon the tdble before the sheriff. 

WUHkm Menit GT0s»-examined by Mr. Grcmt, 

Do yoa know wbat was the purpose of the 
meeting ?— It was fot tbt purpose of petitioning 
the aoTeieign. 

Do you know, if in point of fact, petiliona 
were drawn up and signed by the persons who 
were at the meeting ?~I coiiLd not say. 

Did yon sign any of the petitions younelf ! 
—No. 

Did yon ondeistand from what passed^ thai 
it was tiie intention of McLaren to induce the 
people, and you as one of then], to petition the 
legislatnre, or to excite violence and disturb* 



lard AdooeaU. — ^I object to this queelioik 

Idtrd Jutike GMc— The UBderstanding or 
c^nion of any witness is not to be lutened to 
in evidence. 

Mr. GtmI.— What did vmi ooB«Bt tohe the 
object of M^Laiea'tspeenl 

luriAdoocaU. — ^If this course of examina- 
tion go on, there can be no objectiopr to my 
reexamining the witness. I did not finish my 
examinatioD of him, but on the idea that I 
could not put such questions. 

Mr. Cferifc.-^We hare put a question, and 
we should not be interrupted. 'ih» lord advo- 
cate puts in his claim to put such questions. But 
he must not interrupt us in older to make an 
examination himself. 

€010*^— He has no such intention. 

Mr. QtmUj-^l put this other question : In 
point of bet, did this speech excite tike people 
to commotion or dietaminee ? — ^No. 

Then was none upon that occasion f — 
Hone. 

Was it the tendency of.MliKien's speech, 
from what yon observed, and from what passed, 
to create eommotion or disturbance^ or to in- 
doce petitions to be sent to the Prinoe Regent 
nnd the two houses of parHament ?— -It wai to 
indnoe the people to petition the Prince Regent 
and the two houses of partiaraent. 

Did he oxptesB himself in any way with re- 
gard to the person of the Prince Regent in 
tfant speech ?--Not that I remember of. 

When he advised diem to lay their petitions 
at the foot of the throne, did he say anv thing 
uCttie angnst prineef-*I do not remember anv 
thing of the throne; but he mentioned hn 
aogost mhicc 

hk what terms t-^In ihvourable terms. 

In terms perfectly legal and becoming a good 
snhjectT^Yes. 

Euffk O-m^ord swoTn.-^£xamiDed by 
Mr. SoUdtor Generai, 

Are you a printer ai Kilmarnock ?-^Yes» 



I De yoq remember a meeting hdd in De- 
cember last in tbcneighbeuihoQdof thattewn) 
—Yes. 

Was a MS. aceount of the pfoeeediags at 
that meeting afterwards beought lo yott t» btf 
printed?— Part of iu 

Did you attend the meeting ? — Ko« 

Look at that ? 

[Pamphlet handed to the witness.] 

That was printed in my office. 

Who brought it?— The part I saw was 
brought by David Andrew, I think. 

Was any body in company with him?— I 
think not. 

Courf .— Has Andrew any more names than 
oa«?«-l do not know. 

Mr. SoUcU&r Generai, — Did you see him in 
the other room to-day ? — I did. 

Who attended the press while this MS. wat 
printed ? — I did not see, as the printing-office 
IS at a distance from die shop, and 1 was only 
occasionally there. 

Did Thomas Baird attend the printing? — I 
think I saw him once or twice ; I am certain 
once. 

Are you able to say whether this publication 
is a true copy of the mS. that was Drought to 



you ? — I cannot say. 
"^ ^ it?—' 

whom I employ. 



Who printed it f— Thomas Murray, a man 



Haye you been paid for the printing ? — No. 

Who is to pay you ? — ^The persons who em* 
ployed me. 

who are thev ? — ^I look to Mr. David Ai^ 
drew, Mr. Andrew Finnic, and Mr. Baird. 

Lord. Ad9oeate. — What was done with the 
publication after the printing? — Cqpies were 
taken ftom me in quantities : Mr. baifd got 
a qoaatity, aad Mr. Finnie and others got 
quantities. 

Mr. jSsficitor Gfeneri/.^-How ' ttnoy co|nes 
were printed ?— About 400 1 think. 

How many did Baifd get ? — ^I cannol My. 

Can yott say abauft what nnmbarP— iWa 
might be four, five, or atx doien. 

Lord Jdvocate, — Do you know M'Laren ?-* 
Within this short time. 
Did he ever complain of his speech being 

Erinted inaccurately ? — No, J never i|>oke to 
im in my life, to my knowledge. 

Thomoi Murrmf sworn,— ^Eimmiaed by 

Are you journeyman to Mr. Cmidbrd ? — Mr* 
Crawford is my emplojer. 

[The pamphlet vras shown to the witness.] 

Was that printed at Mr. Crawford's printing 
office ? — Yes. 

By you ?— Yes. 

Is it a correct copy of the MS. giren yon for 
the pnipoae of being printAd ?^TI»ra ware 
some alterations in the proofs. 

Corrections of the. press ?— Yes. 



«7] 



57 GfiORGB m. 



2Vm/ ofMuuMitr M'Laren 



(a,s 



What altenUions ?«-Typographical errors: 
and peiiiaps in bodm sentenoes grunmatical 
alterations. 

Were there any alterations of the sense P — 
None that I remember of. 

Who gave in the MS. ?— The first part I re- 
ceived fi^m Mr. Crawford. 

Who gave you the rest ? — I received it at 
different times. 

From whom? — ^It was sometimes given in 
when I was not in the oflice, and sometimes 
when I was in it. 

Who gave you any part of it? — Mr. David 
Andrew. 

Did Mr. Webster bring any of it? — Once, I 
leoMmber* 

^ Who came to superintend the printing, and 
to inquire after it?— That person. 

Any body else f — No. 

Mr. Baiid ? — ^He was twice or three times at 
the utmost. 

For the purpose of inquiring about the pub- 
tication? — He was several times in the office. ' 

What did he do when he came ? — ^He came 
to the office along with Mr. David Andrew to 
look over the first proof. 

Did they make any alterations ? — One was 
proposed 1^ Mr. BainL 

What was it ? — ^I do not know. 

Can you point it out in the publication f^—^ 
No, for I never had it in my hand but now and 
before the sheriff of Ayr. 

Was any alteration made in consequence ? — 
None. 

Why was it not made ? — ^It was a grammati- 
cA alteration that was proposed, I thought the 
alteration proposed was wrong, and I had a 
right to make the pamphlet giammatical. 

What became of the MS. from ^ich the 
imbUcation was printed? — It went as all of 
them do, it was destroyed ; I was not desired 
to preserve it. 

Lord ilANioale.— Look at the passage on 
page r. " to — with allegiance,'' was that 
Dlank in the MS. ? — If I remember rightly, 
that part mt the MS. was erased, written over 
again, then erased and interiin^; and I do 
not know but I ordered my apprentice to 
leave the blank, as I oonld not make it out 
To make the sentence join properly, I left it 
blank* 

Did Mr, Baird, when he came and looked 
over the MS., object to the blank, or state any 
thing? — He never looked over it. 

You said Mr. Baird came with Mr. Andrew 
and looked over the first proof. Did he mdce 
any observation about the blank thete left? — 
That was not in the first proof; the proof I 
spdce of was the proof of the first pages of the 
pamphlet* 

I%oma» Mmrmf cross-examined by Mr. Jeffrey 
tor Thomas Baird. 

- Weietheproof sheets tent to any one to be 
revised ?— They were. 
To whom?— To Mr. David Andrew. 



Any to Mr. 
brance. 



f — ^Never, to my remem- 



fPart of the MS. was shown to the witness.] 

Mr. Drummond, — ^Did you ever see that be- 
fore ?— I never saw it befi>re ; it never came 
into my hands. 

Thonm Myrr^ cross-examined by Mr. Greitf 
for Alexander M^'Laren. 

Was any part of the MS. pencilled ?— I do 
not remember ; the MS. was very imperfect, 
and was partly well and partly ill written ; it 
was partly in quarto and partly in folio, in dif- 
ferent bands. 

Do you remember the part that contains the 
blank, what size of the paper was there ? — It 
was folio. I remember it quKe well. There 
were two sheets of foolscap paper written on 
without being folded. 

Was it of die size of this, folded and written 
on as this f — 

[A sheet of folio paper shown the witness.] 

Yes. 



JeMci MmUme sworn. — Fjcamined by 
Mr. SoUcUor General. 

Do you remember a public meeting at Dean 
park, near Kilmarnock r — ^Yes. 

Do you know that there was a committee to 
prepare and adjust the business of that meet- 
ing ? — I do. 

Of whom did it consist? — I really cannot 
tell ; of a number of persons ; of myself for 
one. . 

Was Mr. M'Laren one ? — ^Yes. 

Mr. Baird?— Yes. 

Were any resolutions prepared before the 
public meeting ? — Yes. 

Were they read to the meeting which took 
place ? — Yes. 

You attended that meeting ? — I did. 

Who first spoke ? — ^Alexander M*Laren. 

Was there any meeting of this committee 
after that public meeting ?--<Yes, that efen- 
ing. 

For what purpose ? — The particular purpose 
was, to consider whether they should pnnt their 
resolutions and speeches. 

Who attended that meeting P VTere the 
panels there P — I think so. 

Was it resolved there to print the speeches 
and resolutions ? — Yes. 

The several speakers gave in copies of their 
speeches P — I believe so, but I did not see them 
given in. 

Did you see any thing at all giren in ? — ^No- 
thinff but my own speech. 

Were you present when the prooft of the 
proceedings were revised t— I was not present 
at the revision of any of them. 

[The pamphlet was shown to the witness.] 

Is that the publication of the proceedings 
which took place at Dean-park at the time yon 
mention ? — 1 suppose so. 



it9l 



mad Tlumu B&hri/or StUtbm. 



-A. D. I8I7. 



C30 



By ^vbom does it appear to be printed? — t 
By Hugh CraiHM. ! 

Was it resolved' at the oommittee that he 
sbcnild be the printer f — ^Not particularly. 

Do yoa know the MSS. were sent to h'im ? — 
I do not know. 

Did yott never read the pamphlet?— No. 

Not even yoor own speech? — No; I gave it 
to Mr. Walter Andrew v> revise. i 

Are these the resolutions that were read to 
the meeting } — I have glanced at them. I can- 
not say particnlarly they are the resolotions, 
but generally I believe so. 

Lord AdoocaU. — ^You are acquainted with 
McLaren ?— Yes. 

He was a member of the committee? — 
Yes. 

YoQ have, of coarse, had conversations with 
him about the meeting and the publication ? — 
Yes» in a general way. 

Did yon ever hear if Baird or he complained 
of inaccBiacy in the statement given of the 
proceedings ? — ^Yes ; Alexander M'Laren. 

What did he say? — That one sentence at the 
end of his speech in the printed account, and 
cited in the indictment was not in the original 
M3« He said it runs in this way : speaking of 
the petition being presented to tne Prince Re- 
gent, ''he hoped he would lend his gracious ear 
to it, as he was bound to do by the constitu- 
tion ; but if he did not do so, then to hell with 
allegiance.^ I think he said this was not in 
the original speech. 

Did yon hear his speech ? — Only the sound 
of it. 

Did you hear any of the words of it daring 
the meeting ? — I cannot say I did. 

What did M'Laren say was the inaccuracy P 
— He complained of the latter part of the sen* 
fence altogether being in it at all, because it 
was not in the MS. 

Did be complain of the word ^ hell T 

Mr. CierL^l object to the question. There 
is DO such word in the publication. 

[Ibe witness was ordered to withdraw.] 

Xord .ideooafe.— The drift of the eiamina- 
tion I vras carrying on at the time was, to 
bring out of the witness what was the conver- 
sation between him and McLaren — whether 
McLaren objected to certain parts of the pub- 
Ucation which he is alleged to have done. The 
witness said he never read that publication. I 
am entitled to put the question, in order to 
ascertain the witness's recollection ; and par- 
.ticulariy, whether M'Laien complained of any 
word bein^ in the MS. I submit that the ques- 
tion I put IS competent, viz. whether M'Laren 
complained of *' hell to allegiance^' being in 
the MS. The thing, I admit, is now irreme- 
diable, because my learned friend has instruct- 
ed the witness by stating that there is no such 
word in Ac publication ; Vat I say it was ir- 
regnlar in my learned friend to intormpt me 
and thus to prepare the witness. 



Mr. CterL— Nobody is more oompetent to 

{mt regular questions to witnesses than my 
ord advocate, but I cannot permit him to 
proceed irregularly. What was the question 
put? Whether McLaren complained of hell 
being in therMS. That was implying that 
the words were in the printed pam|)hlet, and 
nobody is entitled to suggest a fidse fiict to a 
witness. No fact must b^ assumed in putting 
a question to a witness. 

Lord Advocate, — ^I wish the Court to keep in 
recollection what the question was to whidi I 
wished to get an answer — whether or n# 
M'Laren complained of being misrepresented 
b^ '* heir being in the printed copy. My 
friend now admits that the question was not 
irregular. 

Mr. Clerk. — ^The question is not as it was 

put originally. 

Lord Advocate. — ^I put it to the Court that 
such was the question. 



Lord Jmtke Gerk,-^! do not see any thiofp 
out of form here. 

Lord Adoocatej^^Tbe opposite counsel were 
out of form in interrupting me, and they have 
rendered the question useless. If they again 
interrupt me, let them first desire the witness 
to be removed. 

[Witness brought back.] 

In«whatvray did he say he was misrepresent-* 
ed ? — ^I did not say so. I say he complained 
of the latter part of the sentence being ^put in, 
because it was not in the MS. 

Then he did not complain of being misrfr^ 
presented? — Yes, in one word that he did no^ 
pronounce the word ** their," or ** our,"wfai^ 
comes in before *' allegiance.'' 

You are looking at the printed statement 
Did vou not say that you had not seen it be- 
fore f— I did not say I had not seen it; I said 
I had not read it. 

Lard JuUke Clerk, — He says M'Laren com- 
plained of being misrepresented with respect 
to a word before ^ allegianee/' and he is en- 
titled to look at the pamphlet. 

WHnen. — As ftr as my judgment leads me 
to take notice, he complained of any thing w 
tervening between the word ^ to" and " alle- 

S'ance," because it was not in his original MS. 
e never intended to say it; it was merely a 
word of some Play that oconrred to his memory, 
and he let it out. 

Mr. Solicitor G^teraL—jyid he tell yon, 
then, how the passage should have been 
printed ? — He told me the identical words he 
used. The last words of the sentence were, 
^ to hell allegiance." 

Lord Advocate. — ^Did he complain of the 
passage as stated in the indietneat ?— Yes ; he 
gave the indictment to me to read. 

Lord Jmtkc Oerfc.— He said tlie passage 



Ml 



57 GEOltGl m. 



Trial -qfAlttMnider M'Larmt 



tss 



was not toiTCcdy giv^ ekher in tke indielfDeot 
or the priDt«d account t — Exactly. 

Lord AdoQcote.^^}htw long is it since be 
«ade this complaint to yon ? — I think the very 
day he received the indictment. 

Jama JMiutoM'tevoss-^xamned by Mr. Jeffrey 
for Thomas Baird. 

Yoi^ mentioned that both of the paneb were 
members of the committee with you. Was 
JUr. Baird at the pnUic meeting f — ^Yes. 

Did yen then* or al any •ther time, hear him 
make any ffemacks upon McLaren's speech ?— > 
No,- 

Did y«tt ttot hear him at any odier time 
.loake any revtfks 7— Yes, I have heard him 
several times complain, and say it was a pity 
the last sentence had been put in. 

Spoken, ot put in ? — It was a pity it had 
been spoken at all. 

Were yon present at the meeiiag about the 
printing ? — Yes. 

Was any objection made to that passage ? — 
*! was'agamst the printing altogether^ not that 



with belter timas. What were then the 
neral wages ? — Abont 12«. a week, from 12«. t# 
Us. 

I ne^ not therefore aak if there was th# 
greatest possible distress at Kitmamock f -^ 
There can be no doubt of it. 

Yon talked of the meeting which was held 
near Kilmarnock. What was its object f — 
Solely to petition the Prince Regeift, and boA 
Houses of Parliament, to consider the grievances 
of the country. It was enr opinion, that one 
irrest reason of them was the defective state of 
the representation, more particularly in our 
part or the country ; and therefore we partictk- 
farly recommended attention to that. 

Were any other objects in view besides pe- 
titioning, any other means thought of in order 
to obtain redress of these grievances ? — ^None. 

Was any conversation ever held in youy 
presence by M^I^ren that tended to any 
other purpose than what is in the petition ? — 
None. 

Did you ever hear from him any hint, that 
induced you to believe he entertained disloyal 



I thought there was any thibg wrong in the | opinions, or seditious intentions ? — Never 



^ttblicatAOB ; but judging Ifrom my own, I sup- { 
|M)sed aA- the speeches weoe made up in a hun- 
ffied way, and wooU not stand the scmtiny of , 
4ihe public eye. 

Do you remember Mr. Baird making any 
objections to the publication ?— -I do not par- 
ticularly. 

. - Do yon know any thmg of ilie reasons stated 
far ot agttnst the psinting ?«^The pnblication 
w&s le defeay the eipenses inenntd at €xe 
public meeting. 

■ Was the sale of the ^blkation intnsted to 
any ^riiaolar pefS4»sf«-3k> she eommiMee in 
foserflil. 

[The MS. of the witness's speech was shown 

to him.] 

Was that written More or after the maei- 
ing t — Before. 
You ofl^iated as chairman at the meeting ? 

—Yes. 

•Jenflf Mmione ei088««xsnrined l>y Mt. ihwM 
for Alexander McLaren. 

You are a muslin agent ? — ^Yes. 

For any of the Glasgow houses i — Yes. 

From that oivcunstaooe, have you an op- 
portunity of .being much acquainted with the 
situation of the manufacturers in Kilmaroook ? 
,— I think so. 

At present now, what may the most active 
weaver be able to clear in the course of a 
week?— At present things are ratheir better 
than they were some time ago. From a cal- 
- culation I hare made, an active weaver may 
^t present gain about 5t. 6d. a week. 

What might he be able to gain a week on an 
•nei^ge of Uie last year? — From 4s. to 4s, 6J. 

Hsrw many hours work a day was necessary 
to gain this. snm?-^At least^ fioia 14 -to 1$ 
hours. 

You hare compared this period of dbtress 



Have you occasion to know whether lie was 
of a peaceable and orderly disposition and 
habit of life ? — I never heard or saw any thing 
to the contrary. '^ 

How long have you been acquainted witii 
him ? — ^These eight years. 

Does it consist with your knowledge thathd 
was a member of a volunteer corps at ulasgowt 
^I have heard that he was. 

Do you know of his being in the local mi- 
litia, or Kilmarnock volunteer corps ? — lie was 
in the rifle corps at Kilmarnock. ^ 

' Was the public meeting conducted in aik 
orderly and peaceable manner ? — I considered 
it so. It was with no other intention I underr 
took the management, and that any gentleman 
will see from my speech. 

What was the state of fhe weather? — It 
was Tery coarse. There was hail^.and wind, 
and snow. 

Perhaps that was the reason you did not 
hear the speech ?^TbBt was the reason ; I just 
heard the sound, but not the words. 

It was not vreatber well calculated fbr -^y 
person hearing a speed) distinctly ?*>->It vnd 
very bad indeed. 

Yon said you wert present at a meeting of 
the committee, when it was proposed to print 
die proceedings, and that M'Laren was there, 
and that you objected to the printing. Did 
any other peraon object? — Mr. M'Lsu«n ob- 
jected particularly to the printing of his 
speech. 

What passed upon that occasion? — ^There 
was a great deal of altercation as to the print* 
ing ; and it was at last agreed that those who 
had made speeches should give them to a 
committee appointed to superintend the print- 
ing. 

Did Mr. McLaren still object to his speech' 
being. printed f — He said, though the restweilv 
printed, he did not see any reason for printin|f 



amd nomoi BaMJbr SmUe^. 



asf\ 

and that be bad no mteation tkat monitng of 
•pcaktDgitaiL 

Were jon present at any meeting of the com- 
mittee prerjons to the pnblic meeting, for ar- 
lansiog about the public meeting ??— Yes, I was 
•t them ail, I think. 

At a previous meeting were any steps taken 
as to appoiatiBg a person to open the pro- 
oeedingsat the pubtic meetiDg?— -It was dis- 
cussed ; and after a great deal of discussioB, 
M.*Jju2m agreed, thai if no other person came 
forward, he wonld do it ; and he raenfeioned to 
ae since the meeting, he had no idea he should 
open the business, as another person had given 
a kind of promise to do it, ana that person not 
appearing on the field, he went to a public- 
house uid prepared some ebsenrations. I saw 
him the ai^ befofet he raeelingi, when be 
tohl me he had hopes another person would 
openiL 

Do yon know who that other penon was ? — 
Tes, M'l^ren told me. 

Was the name of that other peiwm publicly 
mentioned ? — No, it was not. 

Was either of ypu a member of the com- 
mittee that superintended the printiag? — ^None 
of us. 

Do yon know anything o^ a distonbanoe that 
iDoJc place about meal previoos to the meeting ? 
— I heard of it. 

Were yon atKilmamoek atthe time 7— I was 
about two shops from it at the time. I did not 
eoQSider it a mob or distnrbanee. 

Have you occasion to know how MlaiPen 
condneted himsidf upon that oooisionf— No, I 
faav<enot. 

You said you hare known him eight yean* 
Did ynu erar know him to be oolinected with 
any body of men assembled for any seditious 
or illegal purpose f— Never, so ^ as I knew 
him, otherwise I would never have kept com- 
paa^ with him. 

You ar^ an extensive agent?— Itleri are some 
much more extensive than I am. 

Have yoa ever heard MfLareh wet a member 
of any society for any purpose t"<-Of none )»% 
^' ittea. 



A. D. 1817. 



[34 



Cswf .^Does this comnuttea stiU contimie i 
— Hoy the committee does not continue. 

Mr. GntAt^'WwB tfaia committee open for 
an^ person to go to ?— We never had a meeting 
imA wat noc op«B ; and there were always 
Sana ocben present besides the members of 
the committee. Any one was asked to attend. 

Wase a»y pieeaaiions taken to Iceep your 
mceeding^ secret firom tha magistnoes f— 
None. 

Was it emir hiaftad or proposed that it would 
be tw casaaiy to keoD the psooaedangs seotat 
finnn the magistrates r — ^Never. 

la point of lao't, were the raagisttales made 
M^iatad with the intention of the meeting > 
—I believe so. I «aUed and told Mr. fiaird I 
«ohll not 'attend unless the magisttates were 
nade acquainted with the intended meeting< 

V0L.1XXIII. 



Be was anpomt^ ^o tell th«m. Mr. Ba!« 
said he had criled on the magistrate^ but had 
not found him, and he said be would go agaiti, 
and I understood from him he did go again. 

Was there, according to your knowledge, 
any obstfuction offere4 by the magistrates tb 
the meeting?— I saw nbtle. 

Do you kno^r whether, in point of fact, pe- 
titions, founded on the resolutions adopted a:t 
that meeting were prepared to the Prince 
Regent and the two Houses of Parliament ?-^ 
They were. 

Did you read them over?— I think nearly. 
I heard diem all read. 

Does it consist with your knowledge that 
they were forwarded ?— I was toW so by Mr. 
Baird. I read in the public papers that they 
werepresented. 

If 1 were to show you a printed copy of the • 
petition, should you remember it f 

Lord Advocate, — Nothing iasaid in the in- 
dictment >about the petition., 

Mr. CMr^Mach will be said in defence 
upon this veiy fact about which we are 
examining the witness. 

Lord Adooeate, — ^Defences have been given 
in for the panels, and no notice is taken in 
them of productions being to be made. Your 
lordships will take notice of this. I only wish 
you may keep this in view. 

LordJugUee Clerk. — We must receive what- 
ever may go to exculpate the panels. 

[The account of the petition in a printed copy 
of the Journals of the House of Commons 

was handed to the witness.] 

« 

Mr. Gran/.*-* Were these the terms of the 
petition 7 — ^As far as my judgment serves ma» 
that is the substance of the petition. 

Have jrouany doubts whether this is the 
slme petition? — I have none at all. Nona 
can suppose my memory is such as to say these 
are the identical words. 

Your answer is quite proper. I have put a 
cross at the margin. Say whether you recollect 
particularly that the words there form part of 
the petition ? 

lord iMNKote.-—! consented toa fawqoes- 
tions being pvt to the witness, hot I now ob- 
ject to any farther questions that are not cross. 

Mr. Grant, — ^I am just finishing this part of 
the examination. I have only to read a pas- 
sage, and ask the witness whether he remem- 
bers it. '' When we came to discover those 
alarming facts, our hearts stood appalled, as if 
we had trod on a volcano : We looked around 
for the -cause, and we found it in the very 
corrupt and defective representation of the 
people in parliament. We found, that the 
Commons House, whose members ought to bcL 
chosen annually by the peopfe — should be the 
organ of the people^s voice — ^the guardians of 
their rights and of - the public'purse — had lost 
all control over the sarvants oC the Crown, atid 

D 



35] 57 GEORGE in. 



Trial qfJlkxander McLaren 



[39 



had become aubserrieoi to the will of the 
minister of the day : That the great body of 
the people are excluded from their elective 
fraochise — that a majority of your honomrable 
House are returned to parliament by proprietors 
of rotten boroughs^jlhe influence of the Treasury 
and a few other indiYiduals; and that seats 
therein are bought and sold like tickets for the 
Opera." 

Were these the words in the petition ? — I 
think these identical words were in the petition 
which was forwarded to parliament, and or- 
dered to lie on the table, I believe. 

You remember being shewn this printed 
publication. You said M'Laren complained 
of the latter part of his speech being inserted 
because it was not in the manuscript ? — ^Yes, I 
did. 

Say what part was not in the manuscript? — 
I cannot say what were the words he spoke at 
the meeting. What he said to me was, that he 
concluded with a line of a play, and it was ** to 
hell allegiance/' 

Mr.' CA^Ae.-^Did he say that any part of the 
passage before that was not In his manuscript ? 
— He just said the latter part of the sentence was 
not in. the manuscript. 

You said you haa a conTersation with him 
when he shewed his indictment, and that he 
complained as you have stated. Had you any 
other conversation with him on the subject 
than on that occasion ? — Perhaps there might 
be two or three, but to the same purpose. 

Did he attempt to influence you as to what 
evidence you should give at this trial? — ^Neither 
of us considered I should be called on to give 
evidence. I did not know what he had spoken, 
nor about the selling of the pamphlets. 

Lord Advocate, — We have had a very elo- 
quent petition read. By whom was it com- 
posed f — I do not know. 

Did any member of the committee compose 
it? — The committee for superintending the 
printing were appointed to compose it, namely, 
Thomas Baird, W. Finnic, W. Andrew, 
D. Andrew, and W. Webster. 

They produced it to you as their own com- 
position r— It was produced and read at the 
meeting. 

Did they say anything that led you to suppose 
that it was not their own composition P — I do 
not think they did. • 

Did they not say from whom they got it 7— 
They did not. There was some amendment 
made upon it. 

Upon vour oath can you state that none of 
them said to you anything about the getting 
of the petition f ~I heard nothing of it. 

Did any member of the committee give you 
to understand they had not drawn up that pe- 
tition, but sot it (^m another quarter? — It 
would be ridiculous for a man to speak posi- 
tively to a thing he does not recollect of. 

Hugh Wibqn sworn.— Examiued by 
. Mfk Jjnttfff^ond, 

Were you at a public meeting in Dean-park, 



about the beginning of Detember P — ^I believe 
it might be about Uiat time. 

Who was the preses of the meeting ? — James 
Johnston. 

Who made the first speech? — ^Akxaader 
M.'Laren. 

Did you^read an account of the raeech ?-?> 
Yes. 

Was it correct ?-^I do not remember. 

Did it appear correct or incorrect, generally 
speaking ?— -Yes, it appeared correct. . 

Did you see anythmg that was incorrect ? — 
I cannot say that i did. 

Doyou know where it was sold ? — ^At Thomas 
BairdV 

[Pamphlet was handed to the witne9s.J 

Did you buy this copy in Baird's shop ?— - 
Yes, I believe I did ; I am certain I did. 

Do you see your subscription there?— Yes. 

Where did you write it? — In Mr. BrownV ■ 

Who was in the shop when you bought it ? — 
I do not recollect. 

Lord AdvooaU.-^ATe there any booksellers in 
Kilmarnock ? — ^Yes. 

Hugh WiUon cross-examined by Mr. QraiU 
for Alexander McLaren. 

What was the object of the meeting? — To 
consider the propriety of petitioning paniament 
for a reform. 

Had the meeting any other object ? — ^None^ 
that I know of. 

Did any person recommend aaything else ^ 
^Not that I heard. 

Did you hear the panel McLaren speak upon 
that occasion ? — ^Yes, I was there at the time, X 
heard part of his speech. 

Was it a very stonny day P — ^Veiy stormy. 

Was there hail?— Yes. 

Were many umbrellas up? — ^A great num- 
ber. 

Was any noise made by the pattering of the 
hail upon them so as to prevent you from 
hearing ? — ^Yea. 

Was every thing conducted in an orderly and 
peaceable manner? — Yes, they did. 

Did you sign the petitions to the legislature ^ 
— Yes. 

Do you recc^ect what the terms of the pe* 
titions were ? — ^No,' 

Are vou well acquainted with the panel 
Alexander McLaren ? — ^Yes. - 

How long have* you been acquainted withr 
him? — ^A great many years; five or six, or 
better. 

What character has he possessed as to peaee- 
abledemeanourandloyalty ?— A good character^ 
as far as I know. 

Has he had the reputation of being seditious 
and troublesome, or loyal and peaceable ?— 
The latter. 

Was he ever connected with any sod^7 — 
I do not know ; he was a member of fSe com-- 
ipittee for. petitioning for reibrm. > ^ , - 

But with none other ?^With no other thail 
knowo£ 



d7] 



ttiuf Tkomat Batrdjbr SetUtioH, 



A. D. 1817. 



[38 



Do yon think joa would probably have 
lieard of it if tlM fact had been so t — I think 



so. 



HaTejoD erer heard him iklk of the measores 
of government ? — Yes. 

What waj did he express himself? — ^He used 
to approye of the measures of government. 

um you eyer hear any arguments between 
him and others on politics ? — Yes, he took the 
government side. 

Do yoQ know of his having been a member 
of any miUtary body? — I believe he served in 
the Local Militia, in the Rifle corps. 

Did you look on him as a man of a sedi- 
tious turn of mind, or as a friend to the go- 
vernment? — ^As a friend to the government. 

Did jou ever hear any imputation to the 
contrary cast on him? — I do not remember 
-ever hearing any. 

Do yon know any thins about his objecting 
to his speech being printed ? — No. 

Lara Advocate, — ^Do you know 
the petition? — No. 

Did yon ever read it? — ^Yes. 



you know who drew 



Dand Bow sworn. — Eiamined by 
Air. DrwnnoHdm 

What is Mr. Baird?— He has a grocer's 
shop. 

Were the pamphlets sold at Mr. Baird*s 
shop? — Yes. 

Many of them? — ^Many. I could not say 
as to the number. 

Some doaens? — Yes; some dozens. 

Fifty copies? — I believe there mif^U 

What were they sold for? — ^Fourpence each. 

DaM Bom cross-examined by Mr. Jeffity 
for Thomas Baira. 

Do you know if they were sold any where 
^e? — ^Yes. 

LordAioocaU, — Where? — Different persqns 
of the committee got them. 

Mention who got them? — Mr. Finnie, Mr. 
Johnstone. 

How do you Imow that? — Because I saw 
them given away. They were given to be sold 
by Mr. Baird. 

Besides thpse given to the members of the 
committee, several dozens were sold in your 
shop ? — ^Yes. 

Jamtt Sainton^ sworn, — Examined by 
Mr. Drummond, 

[The pamphlet was handed to the witness.] 

Qave you seen this pamphlet? — ^Yes. 

Have you seen in it the statement of a 
speech said to have been made by you ? — Yes. 

Have yon read it? Is it a fair account of 
what von said ? — ^It is near about it. 

Did you corop6se the speech yourself?-^ 
No. 

Where did you get it? — From Mr. Baird. 
• Before the meeting!— Yes. 

Did you speak or read it ?— 'I read it. 



James iSamfoii cross-examined by Mr. Jeffrey 
for Thomoi Baird. . 

Look at what is written before the beginning 
of that speech, where it is stated, that a Mr. 
Burt and a Mr. White could not attend, but 
had transmitted addresses to be read to the 
meeting. Yours was given in the name of 
Mr. Burt, and you understood it was Mr. 
Burt's speech you read? — Mr. Baird said Mr. 
Burt haa sent it to him. 

It was not Mr. Baird's writings but Mr. 
Bun's?— Yes. 

The following Declarations of the Panels 
were then read. 

Declaration of Alexander M'Laren^ 

At Kilmarnock, the 26th day of February 
in the year 1817, in presence of William 
£aton, Esq. Sheriff-substitute of Ayrshire, 
appeared Alexander M'Laren, weaver in 
Kilmarnock; who being examined, de- 
clares. That he is a native of Perthshire, 
and in April next he h^s been eight years 
in Kilmarnock. Declares, That ihere was 
a public meeting held at the Dean Park, 
near Kilmarnock, on the 7th of Decem- 
ber last : That that meeting was for the 
purpose of petitioning Parliament for a 
reform of gnevances. Declares, That pre- 
vious to that meeting there was a com- 
mittee of certain individuals in Kilmar- 
nock, for the purpose of bringing about 
the said meeting : That the declarant at- 
tended that committee, and David Itam- 
say Andrews, writer in Kilmarnock, Tho- 
mas B{drd and Andrew Finnic, merchants 
there, also attended that meeting, and the 
declarant has reason to suppose they were 
members of it as well as nimself. De- 
clares, That the declarant first appeared 
on the hustings and opened the meeting ; 
and being shewn an ''Account of the 
Proceedings of the Public Meeting of the 
Burgesses and Inhabitants of the town of 
Kilmarnock/' and wherein is engrossed, 
on part of the fifth page, sixth, and part 
of the seventh page, what the declarant 
said at opening the above meeting. De- 
clares, That the declarant has perused 
said speech, and it is near what the de- 
clarant said on the above occasion, except 
what is said about the middle of the se- 
venth page about allegiance> which the 
declarant thinks he did not deliver in the 
words as expressed in the publication. 
Declares, That on the morning of the 
above meeting, the declarant put into wri- 
ting what he must say at the opening of 
the meeting : That he afterwards gave his 
part of the manuscript to those who were 
appointed by the committee to superii^ 
tend the printing of the proceedings, that 
the same might be published along with 
the rest.' .Declares, That James John- 
stone, muslin agent tn the Waterside of 



IIOJ 



57 GEOBGE UI. 



Trial o/Akxamdtr U'Lare* 



L49 



Rilraarnock, was called to the chair, and 
on that occasion he made a nteech, vhkh 
was much approved of hj those present. 
Declares, That the resolutions, as engross- 
ed in said publication, are the same that 
were read at the public meeting, and the 
manuscript was read to the committee, 
previous to the meeting, by Thomas 
Baird, merchant in Kilmarnock, one of 
the members. Dechu^s, That Hugh Craw- 
ford, printer in Kilmarnock, was employed 
to jpnnt the proceedings of the meetmg, 
which were utetwards sold at fourpence 
a-piece, to enable the committee to de- 
fray the expenses. Declares, That the de- 
clarant attended « meeting of the commits 
tee, when those who spoke gave in their 
manuscripts for printing, and the decla- 
rant thinks the foresaid Thomas Baird was 
present : That a committee was appointed 
to superintend the printing, and the said 
Thomas Baird and Andrew Fionie were 
«f that committee. And being shtewn 
the printed report before mentioned, de- 
"clares. That he heard none of the authors 
find fiiult with any thing that is therein 
contained; and the said publication is 
doqueted and signed by the declarant and 
•Sheriff as relative hereto. Declares, 
That the words on the sixth page, '* The 
fact is, we are ruled by men only solici- 
tous for their own aggrandizement, and 
they care no farther for the great body of 
the people than they are subservient to 
their accursed purposes,** were in the ma- 
nuscript wrote by the declarant, but were 
not repeated by him at the public meeting 
when on the husting^s as above. And the 
foregoing declaration being distinctly 
read over, he declares that it cont^uns the 
truth. In witness. Sec. &c. 

Declaration of Thomas Baird. 

-AX Kijmamock, the 26th day of February 
in the year 1817, in presence of William 
Eaton, Esq. Sheriff-substitute of Ayrshire, 
appearied Thomas Baird, merchant in 
Kilmarnock; who being examined, de- 
clares, That there was a meeting of several 
persons in the town of Kilmarnod^ in the 
month of November last, for the purpose 
of taking Into consideration whether or not 
there should be a general meeting for the 
purpose of petitioning the Prince Regent | 
and both Houses of Parliament for a re- 
form : That the declarant was preses of the 
first meeting only: That there were seferal 
•after meetings, some of which the declarant 
attended, and the 7th of December last 
was fixed for a general meeting at the 
Dean Park : That the declarant attended 
•that meeting, and Alexander M'Laren, 
"weaver in iLilmarnock, mounted the 
hustings, and opened the meeting. with« a 
speech : That Jaxnes Johnstone, mslin 
•ngent in KUmamock, ^p^a^ called to the 
vhair^ and read a 9peeo|^,tQjhe mating 



from a memorandum book. And being 
9hown a manuscript consisting of nine- 
teen pages, declares. That he is pretty 
certain that it as the same that he read 
to the meeting, and which the declarant 
saw some days afterwards in. Walter 
Andrew's office, and which is doqueted 
and signed as relative hereto. Declares, 
That the proceedingn were ordered to bo 
printed, and the declarant was appointed 
Dy the committee, along with several 
others^ to superintend the printing : That 
Uie declarant assisted ii^ correcting the 
grammatical errors in the Manuscript, 
along with the said Walter Andrew, and 
the declarant assisted a little at the print- 
ing-office in correcting the proof copy. 
And beiog shown a half-sheet of paper^ 
tided on the back '< No. 5. Mr. Burt'a 
letter/' declares. That said words ace of 
the declarant's band-writinp^ and the said 
halMieet of paper was given in hv the 
declarant to the printer, along witti the 
rest of the manuscripts ; and said half- 
sheet of paper is doqueted and signed by 
the decnrant and sheriff-subMttnte as 
relative hereto. Declares, That the pro- 
ceedings of said meeting were printed 
by Hugh Crawford, and a great Mmber 
of copies were sent to the declarant's 
•hop, and be reuiled liheni at fourpence 
a-piece; and being shown a cop^p e€ 
the publication, declares^ That it is a 
copy of the proceedings whieh weie pub^*- 
lished and circulated as above, and is 
doqueted and signed as relative hereto ; 
all which he decides to be true. In- wit- 
ness whereof, &c. &c. 

SVIDBXCS tZI BXOULrAflTION. 

Jamm. Smmrn swom.-^-Examined; \ff 

Mr. 'Crani, 

* _ 

Yon remember a public meeting at Kilmar- 
nock last December. Was it for the purpose 
of petitioning parliament ? or what was th« 
object ? — To petition parliament. 

Were von a membier of any committee re- 
garding that meeting ? — Yes. 

Are you well acquainted with the objects of 
those who were concerned in that meeting ?-— 
I know as to any meetings I was^ at of the 
committee, what I heard there. 

What was its object then?—- Entirelyto pe- 
tition pariiament. 

Do you know who were proposed to open 
the business ' of the meeting by a speech ?^^ 
Different, persons. 

Do you remember any of their names^?-*! 
could not say I entirely recollect,, except him - 
that did it ; bnt I know that others were pro- 
posed. 

At what time was it proposed that Infr. 
H'Laren should open the meeting? — About a-, 
weelf. before jthQ.paeetiog took ris^i * 

Hid he accept readily thi^.mfi^ of • ofteMg 
the meet]i^9.J-«lie did la^ 



4 > 



41] 



awB juMMMf BnnLjw Sttknon^ 



A. B« i«n* 



CM 



Did te dqtet to doiiif it?— Y«ik 

Did lie mtggm toy one ebe to do ttf— 



Whom f— Mr. Blackwood. 

Did be suggest any other penon? — He was 
for imposing it on me. 

Did you consent to do it? — Ho, 

What was the last time he urged yon f — 
ilboM an kQw befinrt the meclkkg took 
Mace* 

Did he state he was Mtp a wd or unnre- 
pared ? — I did not know ttuA he had anjthinff 
orepared ; but he said he wei not a fit hand 

It wi» on ironr refusal that he undertook the 
office himself? — ^Tes. 

What was the object of the petition ? What 
was it about? — ^To obtaid a reform in parlia- 



Was there any conf ersation as to what was 
to be done in case the petitions were not as- 
sented to ? — Yes. 

Whafwas to be done? — ^Tb petition again. 

Did you hear Mr. M'Lau-en make his 
apeedi ?— I was present and heard some of it^ 
but I did not hear it distinctly. 

From what cause ? — One reasod was> that I 
was behind him, and the wind carried the. 
aoand of his voice to die other side ; and as X 
knew I had to read a speech myself, I was a 



late? Did be oppoM those ttiat mm% mi tile 
Opposition side WYes. 

Was he a man ^yen to riototti prooeedings, 
or was he industrious sC his business, and quiM 
in his tonduct?— 'He was indnstrioQl ^ Ui 
bnsinessy and quiet in his conduot. 

Was he ever connected with any aoefittfv 
except this coannitlee ? — No, n«TW. 

Is he a sober man, or is he given to ciwpiiliy 
and liquor ?-^Not that I know of ; hois a sober 



FioiB the general import of die epe«c1s dM 
ywigatbeaiu purpose WaS|loetoite riot end' 
dbturbance, or to induce People to come fy^ 
ward to sign this petition ? — Tiie latter. 

Do you know that petitions were proposed ? 
--lfc>ttlQS&. The resolutions wei« roid and 
approved of, and the petitiOtiff were to be ae-^ 
cording to the spirit or these resolutions^ 

Wb^ ste^ were taken for preparing the 
petitions?—) could not say positively t^ut 
tbat« 

Did you ngn^ any petitions ? — Yes. 

How many? — -Tbree, I think. 

To whom were they addressed ?^-To the 
Prince Regent, the House of Lords, and the 
House of Commons. 

Do you know whether they were forwarded ? 
— ^I beliere they were. 

Were you ever molested in^ consequence of 
having signed any of these petitions ?-^No. 

Did you overhear of any 6ne being mo* 
tested?— No. 

Hftve-you known Mr. M*Iiaren a long time f 
— A considerable time. 

In yoor opinion what was his character as to 
qinetness of demeanor and loyalty ?-^He was 
regarded as one of the loyalest men where he 
lived previous to this charge of sedition^ 

Have you ever oonverawl with him on poli* 
tieal questioBS r-*SometiineB' about thv doors ; 
and I have heard him disj^ute withothei% and 
support the side of administration. 

How lon^ ago i» it* since -you heard bin eat- 
pteM his opmkn on saeb subfeeMi ?(«-«More than 
a^rm^iafieii 

In disputing with others what M%^46A^ hi^i 



Were yon present at At coianittee when 
there was a talk of printing tba proceedings J**^ 
zcs. 

Did yon see, or hear read before the oom^ 
mittee, a manuscript nurporting to be a speech 
of Mr. McLaren? — It was not at that com- 
mittee I think ; it was at a previous one. 

There was a sobeeqaevt ooxBnrtttee?-«Y6S. 

And you heald read eivev wlwt f«ifovted 
to be a speech of Mr. McLaren ? — Yes. 

[fThe pamphlet was handed to the vritneaa^} 

Dkl yo« ever read this pulditeatio»?-^Y4^ 

De you sedoHeet a passage m the p¥ulfed 
speech about allegiance? — I could aal sa^; I> 
think so. 

Look at these words. Da ytta riUVeiiib«iF 
bearkig die manueeript read? and do ybu 
recollect in it the words at the end diour 
allegiance, and* so on, which are nbw in* that 
prittled piper V-I eoaM not say they* W€re 
there. 

Can you say they werr Ae<i there T-^ttley 
were not there, X thinh^ when he-delivered the 
pwper. 

Say what was not there ?— I think the tW6^ 
or three last lines were ttot ia the manuseript : 
*' Yes, my flellow countyyittfepM^^ imp sa^h> a casi^ 
to -^^^ with' our allegian4l«<i'' 

Do you recollect the app^iVttOft of tKtf 
manuscripr!-^! thlnk4VWttS<roMedii«if a^nditi- 
row strip Ulie a ^heet* folded^ over agi^iii; 
It had been folded, I think, before if wtiiM 
written o&t 

Was the papM foldod thur?-f A?^e«l Of* 
foolscap-paper shown to the witness folded ia 
octavo.]'^ lea,, it was folded in that manner.' 

Waa it written bookwise F-^Ves, t thinl^< 
so. 

I do not ask' you who did what I am going; 
to mention, but did any body at that-comnii" 
tee, not Mr. Whuehj. make aav pencil mark* 
ing ou that p^per ? — YesyX think tliey did. It* 
was not Mr. M^ren. 

Do you know what theeO' marks Were?>*-L 
did not see the marks* 

Did you hear any persoaread tbe alteratioa 
made by the marks ?-^Ye9» 

Was this correction imntediately^ read ?-^ 
Yes. 

Did the person who read that conrectionvead • 
it as a correction he had made withthese peadL 
marks P^-I think ho did, 

WhK^ was the puqKwt oCtbat cofreoiioal-^ 
It is now at the end of this'printed sMOth. 

You 8iglMd<.tli« p^litioa'to' iM»«HoaSfiM>f 



431 



£7 GEOROE lU. 



Trial tjf Alexander M'Laren 



[44 



. Commons : should you know the purport of it 
if you saw it r — I think I should. 

Look at that ? Jpage 82, of the printed yotes 
of the House ot Commons.] — I cannot re- 
collect eyery word or sentence. I think that 
is the petition. I see sentences that were 
there. 

You recollect the words where you see a X ? 
r~I could not say positlTely. 
• Do you recollect any of them ? — One part 
ahout " indemnity for the past" in the sentence 
— [The passage which Mr. Grant read was 
pointed out to the witness.] 

Do you remember that passage ? — I cannot 
remember it.' 

James Samaon cross-examined by the 
Lord Adoocate, 

Who were present when these pencil marks 
were made on the manuscript speech } — ^I for 
one. 

I suppose so. Who more? — ^John Ken- 
nedy. 

That is two. Any more ? — Archibald Craig. 

That is three. Who else was there ? — I do 
not recollect any. 

Do you say there were no more present ? — 
There were others. 

Let us hear the names of some more of them ? 
—Mr. Baird was there. 

Was M'Laren ? — He was there. 

Was it by any of those you haye named 
that the pencil marking was made ? — Tes. 

Which of them?— Mr. Baird. 

You have the book lying before you, tell us 
what was altered? — The latter clauses or 
clause. 

Was any thing put in or> left out ? — It was 
put in the manuscript by Mr. Baird. 

Did he give his reason for putting it in ? — 
Yes; because the manuscript deliyered was 
not complete according to the way in which 
the speech was spoken, and therefore Mr. Baird 
put it in. . , 

Did Mr. M'Laren make any objections to 
this alteration ? — I did not hear. 

Mr. Grant. — ^We would haye brought seve- 
ral witnesses in addition to those for the 
crown, to testify as to the character of the 
prisoner McLaren ; and it is my duty to inform 
you of a mistake by which we haye been de- 
priyed of this opportunity. The letters of 
exculpation, with instructions to cite witnesses 
to proye the good character of the prisoner 
'^M'Laren, were, by a mistake of the proprietors 
of the coach at Kilmarnock, forwarded to a 
person of the. some mane as that on the address 
on the parcel in a Afferent town^ aiui not re- 
turned till the night of Thursday before the 
trial, which circumstance we are m condition 
to proye to your lordships; and we have 
therefore nothing we can legally produce in 
addition to the testimony given of their cha- 
racters. But we haye certificates which your 
lordships may perhaps allow to be read. 

Lord JuUice Ckrkt-^Hoi at preseut; you 



may state the import of them in the address to 
the jury ; but they cannot be put in here in 
evidence. 

Lord Adoocate, — If apy statement had been 
made to me of a wish that the trial should 
have been delayed, I would have willingly 
conceded the delay. 

Mr. Grpnt, — ^Tbe thiAg was not ttiought of 
sufficient importance, and the mistake did not 
appear till last night. 

Mr. Clerk, — Your lordships have heard some 
evidence which shows that the meeting was 
for the purpose of petitioning the Regent and 
the two Houses of rarliament. And you have 
heard that a petition was forwarded to the 
House of Commons ; and reference has been 
made to a paper, which' we state to be a copy of 
the printed votes of that house.* We wiidi 
to produce evidence of this, and of some others 
of the same description, for the purpose of 
showing what sort of language is permitted to 
that House. I need not state how necessary 
it is for our plea to show you what language it 
is lawful to use in such cases. lu preparing 
the petitions, and in debates on the subject, 
such language must of course also be permit- 
ted. We can have the productions proved by 
Mr. Grant. 

Lord Advocate, — I think it competent to ob- 
jtet to these productions, and to the evidence 
proposed to be brought as to the accuracy of 
them. 

Mr. C/crA:,— Doyou admit them? 

Lord Adoocate. — \ have not read them, and 
I know nothing of them. 

Lord Justice Clerk, — The lord adyocate only 
admits that it is the practice to print votes oif 
the House, and that these offei^ in evidence 
have the appearance of being copies. It is 
not usual to call on counsel to be evidence in 
the trial. As an agent for the prisoners could 
not be admitted as evidence, I think it would 
be better to call on some other person than 
Mr. Grant.f I observe a noble lord present 
whose testimony might be given. 

Lord Gilliet, — Mr. Grant can^be examined 
as a hayer. 

Ljrd Advocate, — I go so far as to say that 
I haye no reason to doubt the genuineness of 
the copies. 

Mr. Clerk, — I conceive you haye been in 
the use to receive papers from agents, and to 
examine them as havers of these papers. An 
agent does not give parole evidence in the 

' * £yen the printed Journals are not, in Eng- 
land, ^evidence. 8 How. Mod. St. Tr. 685; 
1 Phil. Ey. 406. 

f Mr. Grant the proposed witness, was one 
of the counsel for the panel M'Laren ; he was 
at the time of this trial a member of the House 
of Commons^ 



451 



and Tkotttttt Btttrdfm Sedition. 



A. D. 1817. 



[46 



cause, but only gifet his testimony to the au- 
thenticity of a pgper in his poflsesBion; that is 
all that Mr. Grant would be asked to do. Mr. 
Grant can certify, not only that he believes 
them to be the printed Totes of the House of 
Commons, but |also that he lecetyed them 
under cover from the Vote-office, certifying to 
him that they are the votes of the House of 
Commons. 

Lord Adoocate. — The evidence would not be 
complete ; Mr. Grant can only explain how he 
came by these papers. 

Jjord JvMtice Clerk, — In a legal sense what 
Mr. Grant could certify would not make them 
evidence. The question of their being actually 
the votes of the House would remain to be 
established. 

Mr. Gerk. — After they are made public, 
they are matters of notoriety, which any per^ 
sons may refer to before your lordships. 

Lord AdvocaU.^I admit my belief of their 
genuineness. 

John JndretDS sworn. — Examined by Mr. 
Jeffrey for Mr. Bidrd, 

Are you chief magistrate of Kilmarnock ?— 
Yes. 

Were you in that office in December last ? — 
Yes. 

Do you recollect a public meeting in the 
Dean-park ? — I do. 

Did you receive any notice or application 
regarding that meeting } — ^I think I aid ; one 
or two days before it took place. 

Who waited upon you? — Mr. Baird met me 
in the street, and told me of the meeting a few 
days before. 

Wliat did he state to you ? — ^That he was 
appointed by the committee to wait on me, to 
inform me the meeting would take place if I 
would allow it^ and that if I would not he 
wrguld give up the intention of holding it ; I 
said I did not approve of the meeting, but I 
thoiwht I eoold not prevent it. 

VT^M it a numerous meeting P — I could noi 
say, I was not there. 

Does it consist with your knowledge that 
the conduct of those at the meeting was 
orderiy or otherwise ? — ^There Was notmng of 
riot or disturbance that I heard of. 

No breach of the peace ? — ^None. 

Have there been any since? — I know of 
none ;' I recollect none. 

Was there any kind of disturbance recently 
before ?-^In September, I believe. 

You are acquainted with Mr. Baird ?— >Yes, 
I have been long acquainted with him. 

He is in a respectable way of life ? — ^Very 
respectable. 

11 'he a* quiet and peaceable person, or 
tomnltnous . and disorderly? — Always peace- 
able. 

Doel it <$OBsist vftith^your. knowledge that he^ 
hdd a military cominission in a volunteer or*' 
local militia cdrps ?^I 'generally uiuierstood he 
^|s a captain. 



Have you seen him acting in that capacity ? 
— ^I think I have. 

Down to what time did he so act 7 — I could 
not say. 

WaUer Andrew sworn. — Examined by 
Mr. Cockbum, 

What are you ? A writer ? — ^Yes. 

Do you know Mr. Baird ? — ^Yes. 

Do you rerpember the meeting held at Kil- 
marnock in December last? — ^Yes. 

There was a committee for arranging the 
business? — Yes. 

Were you a member of it? — ^Yes. 

Was Mr. Baird ?— Yes. 

You have seen him at the committee ?— I 
have. 

Do you recollect any discussion after the 
meeting about printing the speeches delivered 
there ? — ^Two or three days after the meeting 
Mr. Baird called on me with the manuscript 
of a speech which was delivered there. I said 
I thought indecorous expressions were in it^ 
which ought to be kept out. He urged that 
objection at a meetmg; but the objection 
was overruled. 

What were the precise expressions which yon 
called indecorous or vulgar ? Do you remem- 
ber the expressions ? — I could not repeat the 
words : the passage was the same in the ma- 
nuscript, as in the printed pamphlet, where I 
read, *^ which he is oound to do by the consti- 
tutional laws of the country; but should be be 
so infatuated as to turn a deaf ear to their 
just petition, he has forfeited that allegiance^ 
Yes I my fellow-townsmen, in such a case to 
with allegiance.'' 

What was it you objected to f— What I have 
read. 

And Mr. Baird concurred in that objection, 
but he was out-voted ? — ^Yes. 

Was there an^ other speech, to the printing 
of which he objected ? — ^The last in the pam- 
phlet ; the speech of Mr. Kennedy. 

What was his objection to Kennedy's speech ? 
— ^He said it was nonsense. 

Did he object to any of the. othen ?--^To 
part of Mr. Burt's. 

What was the objection to it P— He said it 
would have been letter if it had been clothed' 
in milder language. 

From your conversation with^him, did you 
understand him to be the author of that speech ? 
-^No. He expressed regret that some of it 
was not expressed in milder language. 

Did you ever hear him express a desire to 
have every thing dgne quietly, so as to give 
oiTenca to nobody ? — ^Yes. 

Was there any riot at the meeting?— Not- 
that I heard of. 

Did he ever express to you any desire tfant 
government should be. overawed ?7-No. 

He wished regularity of prokjeeding? — ^He 
said, the only object was to petition constittf- 
tionally, so as to give offiince to no one. . . 

What was the object of printing the pro- 
ceedings?— To defray the expenses intenrred. 



4ffi 



1 ^HB^ass in. 



Wtf ^ ^fumi v NflMm 



r4e 



Rer. JAmef IGr ihooorf sworn ^ — fixumined by 

Mr. Jeffrey. 

Are yoa acquainted with Mr, Baird?*-rl 
have had that pleasure for nearly two years. 

Do you know him intimately? — Very inti* 
mately. No one more so. 

In the course of yi>ur aoquamtanee with Mr. 
Baird, have youlnd ODQTeraatioiis with hira 
•a political sttfagects ?— I have. 

Has he ei^prnsed hH^ sentiments with apptr 
rept .sii^cen]^ 4n4 eon?i^an?— rWith the 
greatest I have no doubt. 

Did he express 9n attaoUoieiit to the ooasti- 
tution as established by laW) or a doiix* to 
have it altered ? — He. eiipressed % desire (hat 
the popular part of the constitution shouU be 
fUieB^thened an4 inen^gsi^* MTer that the 
constitution should be ov^rlQXted* 

He wished some r^fomnstion of the rcpfe- 
aentation of the Hojase 9f Comwiaiis f— Yea. 

Did he ever* eif^l^^ by what means he 
thought ^lis )ihott]4 be ^yitenqpled? — I have 
oft^n h/eard him say h? w^ anxious that any 
thing Uke viol^nqe sho^ < be avoided, aad 
that none but constitutional meaaur^a ^ouM 
\/e taken. 

Does Mr. Bair4 attei^i your congnegatioD 7 
—Yes. 

Is he a man of peacfoaSle an4llK>i9li.con4uct? 
i^-To the best of my knowled^ he ie sow 

Did he ever discover any ^onjew^y lo rioteus 
or disorderly cooduot ?-rrl %Md^'Obiirted ajiy 
ti^Dg or that kind i« him*. 

He is a peaoeable jam WI think 4P» 

Has he si^y f}imil|[)-rHei haa «#iref«l chilr 
dren. 

Dp you Ihink Mm Q9^bb) of : i|»tonlionaI1y 
exciting tumult or violence among the people? 
—I should cei^tajiily think he it itog^iheff in- 
capable of designedly doing so. 

John WyUie syfon, — Examined by 
Mt. CoMum, 

Do you hold anr officer ^t^f gtHrarmnent ? 
—I am surveyor of tiM^fflr.t)i« thiWI diatiiet of 
Ayrshire. 

Do you hold any military; eeiminisaioD ?-*-( 
ifraa in thei Volpm^erp till 1609, %iid Istill hold 
^ooromi^sion m^ I^o^al HtliUtia. 

I need hardly ask you if y^ eve a Mm re^ 
fe^mer yoursrtf fr-J imm 9/im^^.mfmtins» 
%! auch purpiwHS* 

. Yo>iare r^tbeir.iiLiQifteriaUy ineUn^dC I |W^ 
•ome. Do yp^,kn^vt Ml • JM^ ?— Y<es. 

What app«ar«4 to* be hif politieal aei^ti- 
i|j9^8 Ff^ue je^DMd.W be a. ftieB4 tothe cdiih 
etitution, but wished a refiuia 19 tb^ repreae»- 
t«|ion. 

He had no desire to overturn thoi dOPItita* 
tian^—I h^ve.h^aid bii%. wa^ly. e;rtol the 
oonstituticuu 

Xa he a :<|^|.iiiani^Ye9» h« baa beea. ao 
ei^ ^^ I kMiFbiqiy and th^t> h tb^ gteatM.: 
part of hiaiife.; 

lahe.reapfjiBtlMe in pfiiot of sHlMtioiil^ 



Htre YOU temd idciig wKk bhn is ny 
eorpa ?-^I was anbalteniy and he was mcaptan 
in the Apshire. 

Did his oonduoC as an officer give satida^ 
tioo ?— He was a ^^try active officer. 

Do you know of a aseeting held at Kil- 
mamodL in Deoember last ?^-I beard of it. 

Had you any conversation with Mr. Baiid 
about it? — ^Yes, once or twice. I beard %. 
{gentleman read an account of the proceedings 
m a company from a Glasgow paper. 
■* Did you ever hear Mr. oaird say any thing 
about the speeches ? — I never heard him make 
any remarks on them. 

Do you know Mr. M'Laren ? — ^Yes. 

Was he in that corps you spoke of? — ^Yea, 
in my company. 

Did he behave well ? — ^As far as I know, 
sir. 

John Brovm sworn. — Examined by 
Mr. Jeffrey, 

Are Tou a writer in Kilmarnock ?— Yea^ 

Have you a partner in business ?— Yes, the 
town-clerk. 

Are you acquainted with Mr. Baird?— Very 
well. 

Is he a respectable man ? — One of the most 
so in, the town. 

Has he a family ? — He is a widower, vridi 
four or 4ve children. 

Do you recollect a meeting in December 
last for petitioning parUament ? — ^Yes, I do. 

Do you know wheiher a oommittee met be- 
fore and after that meeting } — I believe one sat 
several days befoue the meeting. 

Were yon a member of it t — ^No> nor vras I 
ever at the meeting. 

Did Mr. Baiid ever etunmunicate to you 
what was passing?— Scarcely a day passed in 
which we did not converse on the oocotrenees 
of the meeting ; and I was in the habit of adu 
ing what passed at the committee. 

What did be state as the object of the peti- 
tioners ? — ^To prooire a reform in parliament* 

By what means ?^^By constitntional means. 

Did he disavow violence or other means ?*— 
MostdiMincftly. 

You know Mr. Baird was at the pvblio 
meeting: Did he give you any aoeonnt of what 
took place there ?-*Yes^he told me who spoke* 
When the proeecdings were pnUished, I was 
amrpcised at seeing a pacagiaph which I did 
not look for, and I told him it was a pitjr it 
was there. He sud he disapproved of it him- 
self, and was against printing it at aU^ but thai 
a vote was taken on the subject by the com- 
mittee, and they determined to print it, as they 
didnot wiah i^gaibled statcmeirt of the prO' 
ceedings to go before the public. 

Did he make, obaorvations ott any of the 
other speeches?— He pointedly, o^eoted ta' 
McLaren's speech. 

Did he object to any of rtbe^ oAem ?— *He 
diaararoffed of one ov.two, n baring lan^ag* > 
t»ft treeni and 'disHwpaetiul. 

Does it consist with your knowMf%4bat \^* 



4«] 



and Thomas Btttrd fir Sedition, 



A. O. 1817. 



1 50 



haa held comnusnoos in militaiy iy>rp8 ?-^He 
commanded a compaDj of rifle Tojunteers for 
'some time. 

Did he give satisfaction in his military ca- 
pacity ? — ^I Defer heard any complaint against 
nim. I always conceived he behaved like a 
gentleman. 

Was he lately amwinted a commissioner of 
police of the townr— Yes, at last annaal elec-' 
tioo. 

From what you know of him was he sincere 
in his sentiments in favour of constitutional 
modes of proceeding for obtaining redress of 
grievances? — ^There is no question of that. 
He never approved of any other than constitu- 
tional modes of redress. I have known him 
intimately these eight or ten years. 

Was he likely to say or do any thiog to pro- 
duce discontent ? — I conceive he would be the 
last man in the world to be guilty of any thing 
of the kind. 

Are youderk to the road 'trustees? — ^Yes. 

Did you understand Mr. Baird objected to 
these expressions not as being improper in 
themselves but as likely to lead the persons 
.who uttered them into a scrape ? — He did not 
appear to be apprehensive of any coesequences 
to result from them, but he objected to them 
. as improper expressions. 

Are yon acquainted wi^ MILaren? — ^A 
little. I have met him on business. 

Do yott know anything of his character f — ^I 
never heard anything against him. 

Ijord AdvocaU, — Gentlemen of the jury ; you 
have heard from the indictment th^tt tne panels 
are charged generally in the major proposition 
with the crime of sedition, a crime well known 
in the law of Scotland, and with the general 
description of which you must be already fa- 
miliar, but with which, at all events, you have 
had addiuonal means of being made acquaint- 
ed, ttcfOL the luminous and satisfactory judg- 
ments of their lordships, delivered this morn- 
ing in tlie commencement of ^h&trial. I ^hall 
not, therefore, in this part of the observations 
which it is incumbent upon me in discharge of 
my public duty to adoress to you, sav any 
thing in further explanation of the law of sedi- 
tion, whidi — as a crime calculated to unsettle 
the-order of society, and to introduce tumult, 
anarchy^ and ..bloodshed into these realms, 
which, for upwards of a century have enjoyed 
the highest oegree of freedom that ever fell to 
the lot of any people-r-is one of the most dan- 
.gerous whicn can be committed against the 
state. Before, however, concluding the re- 
marks with which I shall have .to trouble you, 
it may be necessar^r for me to draw your atten- 
tion to the application of the law to ue charges 
prefierred against the paneb. In ^e fir?t in- 
stance, however, I shall confin.e myself exclu- 
sively to the evidence which has been adduced, 
in order to establish that the acts at least, a1- 
. leged in the indictment to have been committed 
. by the prisoners, have been brought home to 
.tibem. 

VOL. xxxin. 



Tou will observe, then, that in the minor 
proposition of the iiidietment, the prisoileri 
are charged — McLaren with having, at a public 
meeting, on the 7th of last December, held in 
the neighbourhood of Kilmarnock, and attend- 
ed principally by the lower orders of the peo- 
ple, used- certain seditious and inflammatory 
language, in a speech which he then deliver- 
ed — a speech calculated to degrade and 
bring into contempt thef goverment and legis- 
lature, to withdraw therefrom the confidence 
and affections of the people, and to All the 
realm with trouble and dissention. For the 
precise expressions which he then employed, I 
shall beg leave to refer you at present to the 
copies of the indictment which are before you, 
in which the passages of the speech are detail- 
ed at length, and to which I shall hereafter 
be obliged more particularly to call your 
attention. 

The other panel, Baird, is charged with 
having published his speecli, and with having 
been accessary to the printing and circulating 
a seditious tract or statement, purporting to be 
an*' Account of the proceedings of the public 
meeting of the burgesses and inhabitants of 
the town of Kilmarnock, held on the 7th of 
December 1816, for the purpose of deliberat- 
ing on the most proper method of remedying 
the present distresses of the country, with a 
full report of the speeches on that occasion." 
Then follow particular passages contained in 
that publication, which are alleged generally 
to be seditious, tending to inflame the minds 
of the public against the constitution of the 
kingdom, and which, it is affirmed, were pub- 
lished by him with the wicked and felonious 
purpose of exciting sedition against the Go- 
vernment, and of withdrawing" the affections 
of the people from the established order of 
things in the country. The publication has 
been duly authenticated, and although I shall 
afterwards more particularly refer you to some 
of its most striking passages, the whole, I trust, 
will receive your full and deliberate considera- 
tion. 

In the conclusion of the indictment both 
prisoners are charged with being accessaries 
to the crimes committed by each. From this 
you will understand, that if, from a full consi- 
deration and investigation of the proof which 
I have laid before you, you should be of opin- 
ion that the prisoner Baird was accessaiy to 
making the seditious speech delivered by 
M'lAren, or that the other panel, M'Laren, was 
accessary to publishing or circulating the sedi- 
tious libel, stated more particularly to have 
been sent into the world by Baird, then you 
. will have to ifind, supposing you are of opinion 
that the speech and publication are seditious, 
that both are guilty art and part of the crime 
laid in the indictment. 

. In consideriug this part of the case as' a 
question of evidence, I do not think that it is 
necessary for me to go very deeply into the 
import of the depositions of the witnesses \ for 
I conceive, that wh^le you are calleil upon to 
E 



513 



57 GEORGE III. 



Trial afAUtanitr M'Laren 



159 



discharge a most important duty, in declaring 
the guilt or innocence of the panels as to the 
crimes libelled, and which may depend on 
considerations altogether unconnected with 
the mere fact of the deliyeiy of the speech by 
the one, or the publication of the libel by the 
other, you can have no difficulty in forming 
an opinion, that both, and each of them, at 
least, did commit the acts which are charged 
against them in this indictment. You can 
have no difficulty in being of opinion, that it 
is proved that M'Laren did deliver a speech at 
,the meeting, and that the speech did contain 
the expressious which are cited in thi^ indicts 
roent : Neither, in my apprehension, can you 
doubt, that the publication in question was the 
work of Baird ; that he not only superintended 
the printing, but assisted in preparing the 
manuscript for the press; and that he sold 
and distributed this libel, prepared under his 
own eye, with the utmost diligence, indefati- 
gable zeal, and persevering activity. In like 
manner, I, at least, cannot see where a doubt 
can ezisty that it has been legally proved that 
M'Laren was art and part in the publication, 
and that he is now bound to answer for that 
publication which was thus sent forth into the 
world, be its qualities what they may. 

But though that is the impression on my 
mind, and although I have no doubt that the 
same has been made upon the minds of all of 
you, it is, notwithstanding, my duty to go 
over th^t evidence, and to endeavour to point 
your attention to its different parts, as appli- 
cable to the charge against the panels sepa- 
rately, — distinguishing, as I have said, the 
bare facts of the case from the view which I 
am afterwards to take of the nature and im- 
port of the expressions. 

In the first place, then, you will attend to 
the evidence, by which it is proved that the 
speech in question was actually delivered by 
the prisoner M'Laren. 

Upon this branch of the case, I shall call 
your attention to the statement given by the 
prisoner himself in |iis declaration emitted be* 
tore the sheriff. But, before doing so, it may 
be proper for me to state to you distinctly, that 
in considering this part of the evidence, 
you must remember, that nodiing contained in 
this piec^ of evidence can inculpate the oCher 
prisoner, but can only affect the party by 
whom it was emitted. Neither, I will fidrly 
tell you, is it to be taken as conclusive evidence 
even against him. It is, however, a very strong 
circumstance of presumption against him, 
ioQAde, as it has been adnutted to have been in 
this case, voluntarily, while the prisoner was 
sober and in his sound senses, deliberately 
andseriooaly. I shall submit to you, there* 
fore, that when the admissions made in this 
declaration axe taken with the parole proof, 
no doubt can be left upon your mind of the 
Mth of the allegations made in the iodict- 
fnent) in point of fact^ regarding the' prisoner 
H^Laren. 

In the first place, then, the declaration of 



M'Laren states, ''that there was apnbUc meet« 
ing held at the Dean-park, near Kilmarnock, 
on the 7th of December last : that that meeting 
was for the purpose of petitioning parliament 
for a reform of grievances. Declares, that 
previous to that meeting there was a commit- 
tee of certain individuals in Kilmarnock for 
the purpose of bringing about the said meet- 
ing: tnat the declarant attended that com- 
mittee, and David Ramsay Andrews, writer 
in Kihmumock, Thomas &ird and Andrew 
Finnie, merchants there, also attended that 
meeting : and the declarant has reason to sup- 
pose that they were members of it as well as 
himself. Declares, that the declarant first ap- 
peared on the hustings, and opened the 
meeting ; and being shown an * Accocnt of 
the proceedings of the public meeting of the 
burgesses and inhabitants of the town of 
Kilmarnock,' and wherein is engrossed on 
part of the fifth page, sixth, and part of the 
seventh page, what the declarant said at open- 
ing the above meeting, declares, that the de« 
clarant has perased said speech, and it is near 
what the dedarant mad on the obooe oocoiioii." 
He next, no doubt, makes an exception as to 
the inaccuracy of that speech, ^ except what is 
said about toe middle of the seventh page 
about alleffiance, which the declarant thinks he 
did not deliver in the words as expressed in the 
publication.'' 

Tikis, you will observe, is not denying the 
purport of the passage in the libel, but onlV 
the words in which £e import was conveyed 
to the multitude, and we shall see afterwards 
whether the prisoner be correct in this part of 
his statement. * 

He next declares, " that on the morning of 
the above meeting, the dedarant put into i&rtt- 
ing what he naat $ay at the cpemn^ of the meet- 
ing: that he qfterwardt gaoe hs part of the 
nuamtcripi to thote who were apfomted (y the 
committee to mferintend the printing of the pro^ 
ceesSngt, that the tame might he pMUhed wmg 
with the rett. Declares, that James Johnstone^ 
muslin-agent in the waterside of Kilmarnock 
was called to the chair, and on that occasion 
he made a speech, whidi was much approved 
of by those present. Declares, that the re$o» 
bitiontj at engroued in taid piMcationf are the 
tame that were reed at the public meeting, end 
the manmcrift wot read to the committee prevUme 
to the meetmgy by Tfumat Baird, merwmt hit 
KilmamoAf one of the membert. Declares, that 
Hugh Crawford, printer in Kilmarnock, waa 
employed to print the proceedings of the meet- 
ing, which were afterwards sold at fourpenee 
a-piece, to enable the committee to defray Ate 
expenses. Declares, that the declarant attend- _ 
ed a meeting of the committee^ when those' 
who spoke gave ih their maauteripts fSor print* 
ing; and the declarant thinks the fdfesaid 
Thomas Baird vras present :^That a committee 
was appointed to enperintend the printing,* 
and the said Thomas naird and Andrew Fin- 
nie were of that committee. And being shewn 
the printed report before mentioned, dedares 



ana Thomas Baird^fir SedUicM. 



9^1 

^k^ kt heard mm 0f the mdhonfadfadt wUh 
«iy tkm^tlud it Aaron caUmned; and tbe said 

SublicatioD is docqueted and signed by the 
eclazant aod sheriff as relative hereto.'' And, 
before condiiding, be" declares^ that the words 
9D the sixth page, 'the fact is, we are ruled by 
men oaly soUcitbus for their own agmndize- 
menty and they care no farther for uie great 
body of the people than they are subservient 
to their accursea purposes, * were in the manu^ 
xripi wroU hy the dedanmt, but were not re- 
pe^ed by him at the public meeting when on 
the busting as above." 

Now, this is the declaration of the panel, and 
it must, as it will, be supported by other evi- 
dence, before, as I have told you, it can have 
full authority with you as establishing the &ct 
j^ainst the prisoner. You will, therefore, ob- 
serve, that in this declaration be admits, gene- 
rally, that all the parts of his speech as given 
in this printed paper, are accurate, with two 
exceptions. 

Ihe first exception is, that there is something 
inaccurate in the words at the passage regard* 
ing allegiance ; but he does not state, or allege, 
in what particular these expressions are inac- 
curate ; neither does he deny that they convey 
the import of what he had delivered. And, no 
doubt, there is an inaccuracy in the printed 
account of this passage ; because, you will ob- 
serve, that one monosyllable, of very great im- 
port, is cautiously omitted, which, it is proved 
Dy the rest of the evidence, beyond all doubt, 
the prisoner actually employed. The word 
*' heu^ is omitted altogether ; and while the 
prisoner refrained from stating what words 
were incorrectly given, I shovld be entitled to 
infer that it consuted in this omission ; and, if 
so, it is of no importance to the general result. 
Indeed, itk enough for my purpose that he 
admits general^ the accuracy and authenticity 
of tbe pubUoOion ; because I have the means 
of supporting the strong evidence afforded by 
this general admission, by other testimony 
which supplies whatever is wanting in his own 
declaration. 

The second exception which he makes is, 
that some words, which are mentioned at the 
end of ihe declaration, are printed, which he 
did not deliver at the hustings ; but you wjU 
observe, that he admits that those words were 
in the copy of his speech which he gave to be 
printed, and that he does not allege that he, at 
any time, ever objected to the publisher, or to 
. the committee, that his speech as delivered vras 
not accurately given, but, on the contrary, that 
he acquiesced, down to the hour of his emitting 
this declaration, in its being the true and 
fiur account of the speech he had miAe on that 
occasion. 

Let us now attend to tbe parole proof, by 
which this declaration has been amply con- 
firmed. 

Of the two witnesses who were first examined, 
jotthaveFinnie. who swears that the speech 
' which he heard McLaren deliver on that occa- 
sion contained, these words t ''We wUl lay/' 



A. D. 1817. 



L&4 



or ** let us lay, our petitions at the fdot. of tbe 
throne, 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 constitutioiud laws of the country; and we 
are thereby bound to give him our idlegiance : 
But if be should be so infatuated as to turn a 
deaf hear to the eeneral cries'* or ^ voice of 
bis people, to hell with allegiance.*' That is 
the express statement given by a person who 
himself attended the meeting as a party, who 
cannot be supposed to be very unfavourable to 
the prisoners, and whose testimony, indeed, was 
given in a way that must satisfy your minds he 
did not intend to press the case mor« than it 
would bear against either of them. 

Next we have tbe witness Merrie, whT> ex>- 
pressly swears (though his memory is not dis- 
tinct as to the whole passage), that McLaren 
made the first speech. He remembers the 
words ** to hell with" or " for such alle- 
giance.'' He says M'Laren '' wished the 
people to address their . augnst sovereign, and 
he meant their allegiance to him.** Then he re- 
members the words, '* if he turned a deaf ear 
to the voice of his people ;^' and after that came 
the words ** to hell with allegiance." 

Besides the testimonies I have now referred 
you to, I might, if it were necessary, go over 
the evidence of many more of tbe witnesses ; 
but this must be superfluous. You will, how*' 
ever, keep in remembrance the evidence of 
Samson, who, when called back and examined 
for the prisoners, deposed, that be attended the 
meeting of the committee when the speeches 
were given in for publieation 'by the aifferent 
persons by whom they had been delivered at 
the public meeting ; that M'Laren was present 
at tnat meeting of the committee, and that 
when be produced his manuscript, there was a 
correction made on it by Batrd, which was 
read to the meeting; and that the pencils 
marking made by Baird were those Very words 
I have referred to which are given in this 
speech, and copied into the indictment which 
is l^ng before vou. He states, that the words 
which were added by Baird with the pencil 
are, ^ which he is bound to do by the laws of 
tbe country : But should be be so infatuated 
as to turn a deaf ear to their just petition, he 
has forfeited their allegiance. Yes, my fellow 
countrymen, in such a case to hell with our 
allegiance." These are the words which with 
a pencil Baird added to M'Laren*s speech in 
his own presence. Now why, I will ask, ac- 
cording to the prisoner^ own friend Mr. 
Samson, were they added } Why, because tbe 
committee wished to give a true account of 
what took place at tbe meeting, or, to use his 
own words, ** because tbe manuscript delivered 
in was not complete according to tbe way in 
which the speech was delivered.*' The com-' 
mittee did not wish to garble the proceedings, 
but to give i^minnte, true and accurate account 
of what happened ; and the passage therefore 
was inserted. All this, you will remember, 
took place in McLaren's presence ; and did he 



55] 



57 GEORGE III. 



Trial ofAkxander M*Laren 



LS6- 



object to this .addition being made? No; on 
the contraiy, he agreed that the passage should 
remain there, because it was an accurate account 
of what he had said* Some feeling of pro- 
priety, no doubt^ prevented the committee from 
putting in one word which had been used by 
M'Laren, and there is a blank accordingly in 
the printed paper; but the witnesses who 
were examined fill up the word, and tell you 
what is wanting. You have McLaren's ad- 
mission, therefore, in his declaration, of the 
general accuracy of the printed account of 
hia speech; you have the parole proof; 
you have this statement of Samson's; and 
you have M'Laren*s virtual admission in the 
committee, that these were the expressions he 
used. It does, therefore, appear to me to be 
unnecessary to go further in examining evidence 
on this part of the subject. I think it is clear 
that these words were used by M'Laren, and 
that of this it is impossible you should doubt. 
I may now, then, put the prisoner McLaren 
aside altogether, in so far as the mere fact of 
the speech having been delivered by him is 
concerned ; and it is exclusively to that I am 
speaking at present; 

As to the prisoner Baird, we must also look 
to the terms of his declaration. He declares, 
*' ihat the 7th of December last was fixed for a 
general meeting at the Dean-park : That ^e 
declarant attended that meeting, and Alexander ' 
M'Laren, weaver in Kilmarnock, mounted the 
l!iustlnffs,aQd opened the meeting vrith a speech : 
That James Johnstone, muslin-agent in Kil- 
marnock, was called to the chair, and read a 
speech to the meeting from a memorandum- 
book. And being shewn a manuscript con- 
sisting of nineteen pa^es, declares. That he is 
pretty certain that it is the same that he read 
to the meeting, and which the declarant saw 
some days afterwards in Walter Andrew's ofiibe, 
and which is docqueted and signed as relative 
hereto. Declares, 'fhat the proceedingi were 
ordered to be printedy and the dedarant wot ap- 
pointed by the committee^ along with $everal othen, 
to gji^permtend the printing : That the dedaramt 
atmted in correcting the grammatical erron in the 
mdnuscriptf along with the said Walter Andrew, 
and the declarant assisted a little at the printing 
office in correcting the proof-copy : And being 
shewn a half-sheet of paper, titled on the back, 
** No. 5, Mr. Burt's letter," declares, That said 
words are of the decIarant^s hand-writing, and 
the said half-sheet of paper was given in by 
the declarant to the printer, along with the rest 
<>f the manuscripts, and said half-sheet of paper 
is docqueted and signed by the declarant and 
sherifl*-substitute as relative hereto. Declares, 
That the proceedings of said meeting were 
printed by Hugh Crawford, and a great number 
of copies were tent to the dedarant't thop,andke 
retaikd them at 4d. a piepeJ* 

The result of this declaration seems to be, 
that the prisoner admits that he was one of ^he 
compaittee appointed to. superintend the pub- 
lioation complaioedof— iha^he assisted in cor- 
recting die manuscript to'Sft it for going to the 



printing-house — that he did superintend the. 
printing of it, assisting even in correcting the 
press, and that a great number of copies 
were sent to his shop which he retailed and 
distributed. 

Accordingly this admission, vrhich, I hare 
said, is, in point of law, a strong circumstance 
of evidence against the prisoner, is amply con- 
firmed by the depositions of the witnesses, by 
several of whom it has been proved that he at- 
tended the meeting upon the 7th of December, 
and that he heard tne speeches' contained in 
this publication delivered or read by the per- 
sons to whom they are attributed. By others 
it has been proved, that he was one of the com- 
mittee appointed to superintend the pubtica^ 
tion ; and by one of that committee it is estab- 
lished, that m the matter of publication he took 
a most active concern, perusing at least the 
manuscript of some of the speeches as they 
wete given in by the authors or reputed 
authors; and tliat such was his vigilance, 
in providing that none of the precious 
matter which had come before the public 
meeting should be lost, that the passage 
which is chiefly complained of in the first 
charge against M'Laren, having been omitted 
in the manuscript, he himself took his pencil, 
and, for the edincation of the public, to whom 
the pamphlet viras addressed, actually wrote it 
down on the press copy. 

In like manner, you have it proved by 
Murray, Mr. Crawford's journeyman, that 
Baird attended at the office during the time 
the publication was printing — ^that he examined 
the first proof, and suggested at least one, it 
not more corrections. 

Again, as to the fact of pubUcatioii, it is 
proved by the prisoner's shop-boy, aikd by the 
vritness who bought a copy at his shop, as also 
by one of the members of the committee 
appointed to superintend t he publication, and 
who delivered great numbers of the pamphlet 
for the purpose of being sold and distributed, 
that Baird was the principal hand by whom 
this publication, be its ments or demerits whait 
they may, was sent out upon the world. 

When you consider this body of evidence, 
therefore, I cannot entertain a doubt that you 
must be clear that the fact of the publication 
by Baird is incontrovertibly established. 

Upon this part of the question, therefore, 
I have only furlhet to remark, that there can 
be as little ground for doubting, that the pri- 
soner M'Ls^n, besides being bound to answer 
for delivering the speech, whidi in this indict- 
ment is charged with having been seditious, 
must also answer for being an accessary to 
printing and publishing the pamphlet upon the 
table. The facts of his having given in the 
manuscript copy of his own roeech fi)r the 
purpose of being published, ana that he was m 
nember of the committee of publicatioQ — facts 
which are proved beyond all contradiction by 
the witnesses io whom I have already refetree, 
as virfll as by his own admission — can leave no 
manner of doubt upon this subject. 



5T3 



and Thmat Bmrifor Sediiion. 



JLJX mi. 



[Aft 



I Kp^frAaoAf iher^any that yon mitt now t 
concur with me in bolding it to be ettablished [ 
by the proof, 1sl» That McLaren detirered at I 
the jmbUc meetiog that speech, of which parts 
are quoted in the indictment ; 2ndly, That the 
puMication porportinf to be ** Account of the 
proeeedings of the public meeting of the Bur- 
gesses and Inhabitants of the Town of KiU 
maiuock, held on the 7tb of December 1816" 
&e. was printed and published by the prisoner 
l^iidy who was active in its sale and aistribn- 
tion ; and, drdly. That the prisoner McLaren 
was also an accessary to the fact of pnblica* 
tion. 

Upon this part df tfie case, therefore, which 
mnst in fact form the foundation of the opinion 
which yon aie to make up, and of the verdict 
yon are to retnm, there neithercan be any groond 
of difference between my friends on the oppo* 
site side of the bar and myself, nor, I am con- 
fident, can there be a vestige of doubt in your 
minds. 

But that part of the case which requires 
yonr utmost deliberation still remains to be 
considered. In the commencement of the trial 
you heard an admission upon my part, that it 
would be competent for the prisoners, not only 
to dispute the truth of the facts charged in the 
indibonent, but to plead to you, that suppos- 
ing those &cts were brought home to both of 
them, the speech and publication in question 
did not amount to the crime of sedition. To 
that admissiott I still most heartily adhere. It 
has always been in this country, and I trust 
always will be, the province of the jury, in 
every question of this description, to 6nd in 
Aeir verdict, whetherthere was a criminal iiiten<» 
tioo entertained by the prisoneis-^whetber a 
crime has been committed or not—and whether 
that crime amounta to sedition. 

In order to enable you, therefore, to make 
up your opinions upon this subject, had it not 
been for tne deliberate judgments of the Court 
which you had an opportunity of hearing at the | 
commencement of the trial, it might have been 
expected of me to enter into some details of 
the history and of the nature of this offence, — 
one of the most various and comprehensive, 
and at the same time one of the most danserous 
and flagitious known to the law of Scotland. But 
as you heard the unanimous opinion of their 
lordships, that the allegations contained in this 
indictment, if established against the prisoners, 
would amount to the crime of sedition, I shall 
confine myself to such a statement of ihe sub- 
ject as is barely requisite for enabling you to 
Mlow the oondusions which I find it mj duty 
to draw from the particttlar passages m this 
publication urtuch 1 have been called upon to 
bring under your eoneidemtion. 

Seditiim, Gentlemen^ is a crime by the com- 
monkw of Scotland; and it has been laid 
down by our writers, and by Ihe decisions ef 
this court, that it readies- to practices ;of every 
description, whether by deed> word, orwiitinR, 
which^tfecaSeulatedand'iBMnded to distuA) 
the Iranquilli^ trf the state, by exciting disaf* 



footionlD the ttindfrof the people against the 
established government of the country, to pro- 
duce resistance to its authority, or to lead to 
its ultimate subversioo. - 

Allow me, however, to guard myself against 
misconstruction as to the use of the terms, 
** the established Government,'' which I have 
now em]d(^ed. By those terms, you will not 
by any means uhderstand that I refjer to that 
which, in ordinary parianoe, is commonly so 
termed, I mean his majnty's nunisten. You 
need not be told that it is competent and law- 
fed for the subjects of this realm to canyass all 
the measures of his majesty's ministers,— ^o 
state that they are contrary to law, and to the 
interests of the country ; — ^that their prooaed* 
ings should be interrupted, and the autliors of 
them dismissed from office : in talking, thsire* 
fore, of raising disaffection to his majesty's 
government, you will understand that I do not 
mean exciting disaffection to his majesty's m^ 
nisters. Far be it from me to contend th«t 
this is against law, or that courts of law ought 
to interfere to punish practices, words,, or writ*^ 
ings, calculated to produce that effect. Bot 
by the established government, I mean the 
constittttion of King, Lords, and Commons, as 
established at the period of the glorious Revo* 
kition of 1688 ; and, in this sense of the term^ 
I state to you, that any thing which tmds to 
produce public trouble or commotion,*— any 
thing which moves his msjesty's snlgects to the 
dislike, subversion, or distuibaace of hu ma» 
jesty's government, amounts to the crime of 
sedition. Any speech or writing that is calott* 
hued, and intended to vilify and traduce Um 
sovereign in his capacity of Head of the State^ 
or aa a branch of the legislature— any speech or 
writing calculated and intended to vilify and 
traduce the House of Peers^^ny speech o 
writing calculated and intended to vilify th( 
House of Commons, stating, for instanee, that 
it is not the House of Commons, that it is 
the mere nominal and pretended repre^ 
sentative of the people, and does not repre« 
sent them, — ^tbat it has become corrupt;-** 
writings or speeches inculcating all, or any of 
those things, fall under the crime of sedinon. 
In like manner, either a speech Or a writing 
exhorting the people to throw off their allegi- 
ance, under any particular contingency which 
may arise from any one branch of the Isgislap- 
ture either doing an act, or refusing to do an 
act, which may, or may not be within its par- 
ticular competency, will amount to the crane 
of sedition. 

Allow me, also, to observe to you, that in 
all cases of this description, the time when the 
particular act complained of is committed, the 
state of public ofttiiion, and the political rein* 
tsons of the country, internal or external, wiU 
often be essential to the constitutidn of the of* 
fence. For instance, to use am illustration that 
I believe was given by an eminent person, who, 
in the year 1795, held t])e situation which my 

I' -honourable friend near me now holds. Had, 
in the year 1745, any niunberof iadiriduaa^ 



89] 



57 GEORGE UI. 



qfAlumiitr. htJLttttn 



i90 



lKvw^T«r fewy with whke OM^ato id tMr 
faats^ tnd moflkets Id their huids, repiired to 
ili6 Castle-hill, ahovtiDg out the name of the 
Pretender^ they would have heen guilty da 
trime probably not fhort of the highest that 
could be committed against the state; but were 
the same act to be done new, they could be 
legaided in no other light tluun as madmen. 
Various other illustrations of a similar nature 
might be sUted, but I deem it sufficient for me 
Co submit to you generallyy as being dear law, 
that if at any time publications or speeches 
are oompkined of as seditious, it will always 
be of im]>ortance to consider the state of ^e 
public mind at the period the act alleged tp 
constitute the prime has been committed, in 
Older duly to appreciate their nature and im* 
port With this view, and before concluding, 
It will be my province to submit to you, in a 
sinsle sentence, that the state of the country 
«t me time when this publication issued from 
the press, and when the spcm^ was dehrerad 
by McLaren at the public meeting, must enter 
deeply into your consideration in forming your 
veraict upon this indictment. 

Upon this subject I have only farther to state 
that the crime of sedition is one ¥rhidi tUs 
court, and the law of this country, has viewed 
as one of the hi|^est and most flaoitious de« 
scription. Its object is to introduce dissention, 
trouVlesy and bloodshed into the kingdom, — 
to subvert the laws, and to dissolve the bonds 
of society. It is the duty of government, therfr- 
fore, to resist and extinguish it in ihe veiy outset ; 
and if, in the present instance, I have any 
thing to regret, it is that this, and perhaps 
other cases of a similar description, have not 
been brought sooner before a Jury of the 
conntry. 

We come now to consider whether the terms 
of the speech, ts deliversd at the meeting by 
McLaren, or the terms of that speech and of 
the other speeches in the publication after- 
wards given to the worid by the prisoneis, 
amount to the dme of sedition, according to the 
description of that offence which I have now 
had the honour of giving you. 

And first, as to the speech. In it you will 
recollect, that McLaren stated, ** That our su^ 
feringsare insupportable is demonstrated to 
the world; and tnat they are neither tempo- 
rary, nor occasioned by a transition from '' war 
to peace," is palpable to all, though all have 
not the courage to avow it. The &ct is, we 
are mled by men only solicitous for their own 
aggrandizement, and they care no furtiber for 
the great body of the people than Uiey are sub- 
servient to tlieir aceuised purposes.^ 
• In this passage the term rulers, you will ob- 
serve, is employed; and this, it may be said, 
applies to his majesty's ministers, and notto the 
^vemment in the more comprehensive mean- 
ing of the phrase; but it does no such. thing. 
There is no limitation, you will remark, intro- 
duced by the speaker. Even taking the term 
generally, and in its extensive sense, undoqht- 
,cdly it oompieheads ^e wliole order of our 



Omremon^ -^King» Loidi and Covunons : but 
in an afiier part of the speech^ it is explained 
that this last is actuallj^ the sense in which it 
was employed, llie statement therefore is, 
that the King, Lords and Commons, are cor- 
rupt;— that they are solicitous only for their 
oWn aggrandizement ; that they care no further 
for the body of the people, than as th^ are 
subservient to their accursed purposes. Now, 
I ttk, is not this statement calcniated to bring 
the government into contempt, and to excite 
disaffection to the established order of things ? 
Does it not tell the people, that they have no 
interest whatever in the stability of the state; 
and is it not odculated immediately to lead to 
disturbance and commotion? It is for you, 
gentlemen, to answer the question, and it seems 
to me impossible to doubt that that answer 
must be in the affiimative. 

But In this passage allusion ia made to the 
distresses of the people, and these are made 
the instrument for giving greater effect to this 
seditious libel upon the rulers of the country. 
This^you cannot doubt, enhances the crime of 
the prisoner, by having employed that under 
which his hearers were suffering, and which ho 
must have known their rulers could not re- 
move, as an engine for promoting the disaffec* 
tion he was endeavouring to excite. God 
knows, that I by no means wish to under-rsite 
the distresses .which the persons attending that 
meeting were labouring under in common with 
their brethem in different parts of the coun* 
trv* No one who was at that meeting, no one 
who hears me now, can be more sensible of 
the great distress which the lower ranks in this 
country have suffered, and none can more 
deeply deplore it than I do. While, however, 
I folly appreciate the extent of those distresses, 
and applaud the patience with which they 
have been endured, I can only urge the use 
which is made of them in the passage I hare 
read, as tending to prove the wicked and mar 
lidous intention of the prisoners, who could 
have had no other object in referring to them 
tnan to excite disaffection and sedition* 

The prisoner's speech then goes on to states 
''If you are convinced of this, my country- 
men, I would therefore put the question, Are 
you degenerate enough to bear it t Shall we, 
whose forefiithers set limits to the all-grasping 
power of Rome ; Shall we, whose forefathers, 
at the never-to-be-forgotten field of BannodL- 
bum, toki the mighty Edward, at the head of 
the most mighty army ever trode on Britain's 
soil, 'Hitherto shalt thou come and no fur^ 
ther;' — Shall we, I say, whose forefathers de« 
fied the efforts of foreign tyranny to enslave 
our beloved countryy meanly permit, in our 
day, without a murmur, a base Oligarchy to 
feed their filthy vermin on our vitals, and rule 
us u they will 7" 

« Upon this passage I shall merely say, that 
you have heard the only comment which I 
think it can foiriy admit o^ put upon 4t in the 
judgment of one of their lordships* in the 

- , -■ - ' -^ ^ . — « -. 

* loid Reston; ^ds^ mUj p. 16. • 



6U 



lui flkmat Bamtjor SeikioM. 



A. D. ItlT. 



[ds 



eaily port of this tml, * Ton most be satisfied 
thai the object of the orator here it, to reoom- 
mend resistance, and to encourage it by calling 
to the leootiection of his hearers the popular 
allusion to the batde of Bannockbum: Ac- 
cordingly he goes on to state that which must 
leaTc Jl donbt of his intention in this passage 
out of the question, ^ Let us laj our petitions 
at the foot of the Throne, where sits our ao- 

r Prince, whose gracious nature will incline 
ear to listen to the cries of his people, 
which he is bound to do by the laws of the 
country. But should he be so infiituated 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.^ 

In Older felly to understand the seditious 
import of this passage, it must be taken in 
connection with that which I previously com- 
mented on, and a passage in the resolutions 
of die meeting, which I am fairly entitled, 
under all the circumstanees of the case, to 
tabs as part of McLaren's speech. In page 
36 of &e publication, it is stated, ^Bemg 
th erefo re impressed with the truth of these re- 
solutions, the meeting resolve to present peti- 
tions to his Royal Hif^ness the Pnnoe Regent, 
and to both Houses of Parliament, requesting 
his Royal Highness, in particular, to assemble 
Pariiament without delay ; to call upon it im* 
mediatdy to adopt such measures as mav tend 
to restore to the people their undoubted right 
in the representation ; to order, in the name 
of the people, an immediate reduction of the 
taxes, and the standing amy,^* the abolition of 
all unmerited pensions, sinecures, grants, and 
other emoluments, as the surest way of esta- 
bfishing, on a firm and lasting basis, the rights 
of the Crown, and the privileges of the peo- 
ple : And that, in all time coming, no person 
who has an office or place of profit unaer the, 
ISiogf ^ receives a pension from the Crown, 
shall be capiMe of serving as a member of 
die House ca C<»nmoos." 

Now, the meaning of all this taken toother 
is, that unless the Prince Re^^t shall carder 
the Pariiament to reduce the taxes |nd the 
standing army, and to do all the tnings 
which are there enumerated, he has forfeited 
our allegiance, and that the allegiance of the 
meeting is to be thrown oif, and to be sent to 
hdl. fiat, you are not to be told that the 
Prince Regent hasno such power that — 

Mr. Clerk, — ^That is not the meaning of the 



r.— If my interpretation of the 
pamage is wrong, my leamed'ftiends will after- 
wards hatve the meant of correcting me. It 
would be better if at piesent th^ would re- 
frain from intemipting me. In n^ view, it 
deariy impofts the meaning wfaidi I have du% 
upon it. The Prince Regent is to amemVle 
me FMament, and to call upon it to leitora 
fo the people tifcir n^gbt of repnseatation; 
b«t^ in the seeond place, he is to order aU the 



otfier things to be done by the IMisnen^ 
which it is not within his oooapetence to do, , 
or he is to order them to be done of his owik 
authority; and if he does not do so^ then what 
is the penalty ? No less than the forfeiture of 
our allegiance, and, as he says, ^in that ease, 
to hell with our allegiance.'^ Here, then, Oea- 
tlemen, the miseraUe and distrMsed people, - 
goaded by their privations and afilictiona, who 
were surrounding the prisoner, were in this 
speech excited to make demmids upon the 
Sovereiffu and the Legislature, iHiich, if they 
were renised,no less a result was to fellow than 
the forfeiture and throwing oif of their atte* 
giance. 

Now all this I state to yon to infer the crime 
of sedition. It was sedition to alienate the 
afihctions of the people from the Government, 
in the manner which was /done in the first part 
of tho speedi. It was sedition to tell the 
meeting, in the second part of it, that if the 
diffsrent reforms there called for were net 
granted, and if the evils complained of were 
not removed, their allegiance was forfeited, and 
to exhort them in sodk a case to throw it of. 
The next point for consideration is the pub- 
lieation itself. But here I am saved repeating 
the commentary upon one part of that pro- 
duction, the speech of Mlaren; fer it must 
be manifest to you, that if the speech when 
delivered was seditions, it cannot be less so 
when reduced into the form of a publication ; 
and every tfaing^, with one exception, which 
wu ddivered vha voce, is to be found in the 
printed report. There is a blank before alle- 
gianeey-~the word ^keW is left out. It is 
your province^ however, to fill up that blank. 
And, after the evidence laid before you this ' 
dajr, you oan have no difficultv upon this 
point. You heard that one of the prisoneii, 
in the presence of the other, wrote out the 
vrhole- of the passage upon the manuscript 
when preparing Uf or the press. The propria^ 
of inserting the passage wu afterwaids die- 
cussed, and doubts were entertained upon the 
subject by the committee. With the feet of 
that passaae beingaotnally in the hand-writtns 
of Baird, looking him in the fruie, my learned 
finend (Mr. Grant), rather strangely in my op»- 
nion, pressed upon his witnesses to prove that 
Baird, in particular, was awave of the indeoeney 
of its character; for, under such circumslaiices» 
the fact of pubUottion only made his o^ 
fence the* greater. Aecoffdiai^y, it is proved , 
to you^^iat the prisoner, whether convinced of 
its indeoency-or not, still he^ the publisher and 
coneotorof the press, sends it to be printed; 
and out it eomes with the word only left blanky 
affinding,! should think. Id your oonvictioB, 
the fellMt and most complete evidence of his 
guilt 

But let us proceed Id ooosider the other 
parts ti the publication. In pa^e 3, of the 
mdietmant there is this passage : ** But let us 
cone nearer home: look at the year t79l» 
when the debt amounted to two hundred and 
fkifm nHlionB, and the annual taxation to 



631 



£7 GEOBQE m. 



Trid i^jU$iMmdvr M'Laam 



m 



abcml MgbtMii mUiaiii; mhea liberty began 
to rear her dioopine head in the eountry ; when 
asaooiatiooa were rormed from one end of the 
kingdom to another, oompoeed of men eminent 
for their talents and virtne, to assert their 
rights; when a neighbouring nation had jost 
tltfown off a yoke which was become intoler- 
able, — ^What did the wise ralers of this coun- 
try do? Why they declared war, not only 



been nnblusbini^jraElftimpied to be justified Jliy 
reason ef its avowed fr^ueacy and notoriety. 
The meeting, therefore, haTB no hesitation 
in asserting, the debt can never be said to be 
national, nor the present taxation just^ seeing 
the fonner has been contracted by men who 
do not represent the country, and the latter 
raised 'without consent of the tait-payer ; and 
it is contrary to the laws and constitution cf ' 



against tlie French nation, but also against the- t^iis and every free country, that no man can 



- friends of liber^ at home." 

No¥K, I think it is impossible for you to read 
this passage, without Ming of opimon that its 
object was, to impress on the minds of the pub- 
lic an admiration of the proceedings ox the 
French nation (polluted lis it was at the time 

• by treason, by blood, and by crime of evety 
description which it ever entered into the mind 
of man to conceive),— and of those who were 

•termed "the Friends of Liberty at home" in 
the year 1793, its imitators and admirers >— to 
hold out that the sssooiations of that peripd 
were formed for the purposes of promoting 
liberty,, but which all of you know it was de- 
cided by Jurymen sitting in that box where 
you «r9 now placed,-^orymen to whose in- 
telligence and vigour the gratitude of this 
coniltry must be for ever due, — that they were 
formed for the purpose o£ exciting disaffection 
to the government, of introducing turbulence 
and -commotion, and of overturning the Con- 
ttitntion. In short, the object of the publica- 
tion was to call upon the people to imitate 
what was so worthy of aomiration; and it 
would be wasting' time to persuade you, that 
if this was the ol^ect, one of a more seditious 
description, when tsken in conjunction with 
•the other passages in- the publicaticm which I 
•have: already emkI, or am now to read, cannot 
be conceived. 

The publication then proceeds in direct 
terms to state, ^'tfaatthe House of Commons 
is not realty what it is called,— it it noi a 
Boute ofCammoiu." And hem it is necessary 
for me to* read several passages to you, in order 
to prove the seditious nature of the publica- 
tion, and which I shall do wiliiout commen- 
tary, beekuse I am persuaded, that nothing 
ihat lean add. could «arry thejconviction more 
strongly to* your minds of its pernicious sud 
^minei import tiian the very sentences them- 
' selves which i am to bring under your oonri- 
deradon. 

In page 38 of the publication you will find 
it stated, ** that the debt, now amounting to 
nearly 1000 millions, has been contracted in 
the prosecution of unjust and unnecessary 

• wars, by a corrupt administration, uniformly 
'Supported by a llonse of Commons^ whicd 

- cannot be said, with any justice, to be a fiur 
and equal representation of the country, but 
which for the most part is composed of men 



means, have contrived to return a majoci^ of 
members of that House ;<-« &ct which has not 
only*beeu:a(teitted on aU hands, but whtchhas 



be taxed but with his own consent, or ^ith 
the consent of his agent or representative.*' 

Again at page 35, there is the following 
passage : ** We have these twenty-five years 
been oondenmed to incessant and unparalleled 
slavery by a usurped oligarchy, who pretend 
to be our Guardiant and RepresaUatwa, while, 
in fact, they are nothing but our ir^lejnUe,and 
determined enemiet. But happy, happy am I 
to thinks that you have met this day to declare, 
' that you will suffer yourselves no longer to 
' be imposed upc^." And a little lower down 
it is stated in express terms : '' At present 
we have no rmeientativet ; they are onty 
fiomtno/, not reoi; active only in prosecuting 
their own designs, and at the same time telling 
us that they are agreeable to our wishes." 
And again, at page 38, '' A set of pensioned 
seat-buyers in the House of Commons have 
deprived you of all your rights and privileges. 
They hold both emoluments and seats in that 
house, contrary to the express precept of our 
glorious constitution, which says, * that no 
person holding any emolument can have a seat 
m the House of Commons.' Our constitution 
also allows parliaments only to be of one year's 
duration, and that they are to be chosen an- 
nually by the people ; but they have elected 
themselves, and by their own assumed and 
arbitrary juithority have made parliaments, 
first, of three years, then of seven years dura- 
tion ; and with the same lawless power they 
may make them perpetual. Alarming to ref- 
late, they have disregarded our constitution, 
they have scoffed at her equitable precepts, 
they have trampled her and her sons under 
their foet; I would now ask you where is your 
freedom ? Where is your liberty ? When we 
reflect on such usage, it is enough to excite us 
with ungovernable indignation. They are, re- 
cording to our glorious constitution, culpable 
of treason, and justly merit its reward. Will 
a nation which has been so long famed for its 
liberty and heroism, suffer itseV to be duped 
any longer by a gang of impostors? No, it 
will not The unanimity of our sentiments 
and exertions, agreeably to the constitution, 
will once more dispel the doud which eclipses 
the resplendent and animating rays of liberty ; 
and will again make her sl^ne forth in this onoe 
happy country with unimpeded eflhlgence.'* 

In order to remedy all this, universal sof- 



put in by a borough faction, who have nsofped ^frageandannual filaments are recommended- 
the rights of • the people, and who, by undue 



Thus the publication states, (page 10.)-: *^ The 
House of Commans, in its original compoas* 
tion, consisted only of commoners, chosen 
a»mia% by tie umiarial miffhuge qf tie people. 



M] 



fliMt i%9mai Bmdjwt Smlkiutt. 



A. }J. 1917 



4» 



1^ 



No ' noUtmiv no dtiigmaBy do natal or 
tMlitary officer^ in sbort, none who bald pUoa^ 
or receiTed pe9$umtjrcm govemmaUf bad aoj 
rigbt to sit io that House. This is what the 
House of Conunons was, what it ought to 
be^ and what we wish it to be. This is the 
wanted change in our form of gOTernment,-* 
the Commons House of Parliament restored to 
kM ofiginal purity ; and this, beyond a doubt, 
wouJd strike at the root of the greatest part of 
the evils we g[foan under at the present day.'' 
At page 34. it state% " that the only effeotunl 
■Mans that can be adopted to relieve the nation 
in some measure from its present distresses^ 
are, l^ Testoringibeimpreacriptible rights of the 
nauooyby a remrm in the representation of the 
people in the House of Commons, aod by an* 
Bual partiaments; imd until the$e tike pUwej tk$ 
fteple ctM e»i€riam no mamuibU txptiuUum ^ 
ever kmiag tkur eondUion mpraoed, But» 
aiiould tbeso salutary measures be adopted, 
they are confident that such a Parliament would 
always act for the good of the nation, and 
ensure the leopeot, eonftdence^ and support 
ef Ae whole body of the people. Ana it i$ 
not without justice that the meeting ascribe 
to the want of a iair and equal representation 
of the people in Parliament* all the wars^ and 
their oonse<iueoces, in whid) the people has 
been engaged for half a century past; for if, 
at the commencement of the first Aroerieaa 
war, this eoontry had been blessed with a 
Hetiae ef Commons chosen by the free suf- 
fiage of the tax-payers> would they have acted 
eooiisteatly with the constitution of their own 
body, to have gone to war with a people of 
the uuae origin and language, merely to Ibroe 
taxes upon them . without their consent ? Or 
would tlicy have opposed 4he straggles of tbe 
French nation, in endeavouring to obtain that 
fteadom which eve^ Briton cherishes as liis 
birth-eight ? And of ultimately forcing upon 
them a haled Dynasty, oontrary to the wishes 
of nine-tenths of the people ? The idea is 
Inly preposteRMS." In page 26> they explain 
whaift they mean by the ta>-pa]fen. " Consi*- 
dering that of two millions of inhabitants^ 
only 2f700 have a rigbt of voting for Membeia 
ef FarliasBenC, the remaining 1,997,360, al- 
though tax-payers, directly, or indirectly, hav- 
ing no more right of voting, than if thej were 
an impertation of Slaves from Africa." 

After going through all this long detail of 
giievflaces^ you will recolleoty that unless the 
aeiNaia e^led for are granted, and the evils 
eempleined of are redrmed, the people were 
told that theic allegiance was to bo thrown off; 
•■d If allegiaaoe be thrown off, rel^Uion must 
lettew. ne lesult, therefore, of the whole 
tbat I have lead ii, that .as the condition of 
tbe pee|>le never ecmld be improved till uni* 
▼esaal suffrage and annual parliaments were 
obtained, so unless all this was granted, resist 
■use must be iaade» and insurrection against 
the Oovemmeot and the laws must be the 
eeneequence. But you know that in this 
coumnr, to reaiit, tBuM UDSvMd suffrage be 

voL xxxm. 



obtained iS/ in pther words, to reaist until the 
British constitution be fuudamentally over* 
thrown. 

I am not now prepared, — and it would be 
out of place for me, — to enter at leogth vpon 
this important subject, on which so many per^ 
sons have been so gross^ deluded, finl I 
cannot avoid pointing out, in a few sentences, 
that at no one period, either in England or 
Scotland, did universal suffrage ever prevail ; 
and in Scotland, in particular, from the great sub- 
division of property, the elective suffrage was 
never so extenaed as it actually is at the pre- 
sent moment. It is matter of notoriety, that 
the history of the British constitution is to be 
found in the feudal system, and that the con- 
stitution of Parliament in particular, while k 
sprung out of that system, has ever retained 
features which strongly mark its descent. Tbe 
immediate vassals of the crown, the great 
Barons who held of the King ^* in ca^^^ were 
the first members of Parliament. Originally 
there were no persons who possessed seats in 
Pariiament as representatives of others; nor 
were any such introduced into the Legislature 
until the great estates, to which tbf duty of 
attendance in Parliament was incident, having 
been divided, and that duty had actinJly be# 
come a burthen upon the small proprietors, 
the foundation of the representative system 
was thus naturally laid. The first step in Uie 
progress which seems to have been made was 
this, that charters of exemption from Parlia- 
ment were frequently solicited and obtained, 
but those were declared to be illegal. Acoord- 
ii^S^y* it would seem next to have grown by 
degrees Into a law to oblige the great barone 
only to attend in person, and to permit the 
lesser to attend by their representatives. This 
is in truth no mattei of conjecture ; for by c 
statute of our Parliament, passed in 1427, the 
smaller barons were excused fifom coming to 
Parliament piovided they sent oommissioneit 
from tbe shires. 

In like manner, it i# proved l^y the intro*' 
duction io the laws of Robert III., that those 
burglis alone which held property tn f^^ of 
the crown, had the right of being represented 
in Pariiament It is, therefore^ a delusion to 
state, that universal suffrage ever made part 
of our constitution, or indeed that the right of 
the elective suffrage waa ever broader or more 
extensive than at present. In foot, I know ef 
no country in which universal suffrage, or any 
thing hke it, ever existed, but one, and that 
was France in the year 1793. At that period, 
no doubt, there was an assembly elected by 
Bometbing like universal suffrage, and what 
was the result? The degradation of the no- 
bility, — the dethronement and murder of the 
Sovereign,— the overthrow of the chuRh,^and 
the extinction of religion. Is it those things 
that these prisoners would recommend! I 
have already told you, that liber^r, as it waa 
practised in France in 1793, has been held up 
ny them as an object of admiration ; and tf 
you look to what is sUted in the gdd page 
F 



iB7l 



57 GEORGB HI. 



Ttiat tf AUxmder M*Larat 



i^ 



of their pubUcatioD^ tott will fiod, that while 
they hola up to reprobatioo the higher orders 
of the State, the revolutionary &te of the 
€hurch does not seem to have been altogether 
out of their contemplation. *< Their reverend 
hirelings,^* say they, ''would convince you that 
you are suffering under the visitation of the 
Almighty, and therefore that you ougjht to be 
submissive to the chastening stroke.** This 
allusion has a direct application to the esta- 
IMisbed church, — ^its object is not more to dis- 
suade the people from submission under their 
distresses than to bring the clergy and religion 
into contempt. It is to tell the people, that 
while their rulers were corrupt ana oppressing 
them, the ministers of religion were not less 
base nop more worthy of consideration'. 

But while liie peophs are thus told in plain 
bnguage to throw off their allegiance,— while 
they are urged on to resistance to the exe- 
cutive government, — ^to overthrow the Legis- 
lature, and degrade the ministers of religion, 
the publication proceeds Ho hold out the most 
direct encouragement to rebellion. Look to 
the passage about the army in pace 32. 
''Your infatuated oppressors may harden 
themselves against your requests; they may 
consider themselves as fortified behind a 
veteran army, which, they may imagine, will 
be always ready to support them, though in an 
unjust cause^ and by wnich they may conceive 
it possible to awe a nation into silence and 
submission. But let them recollect that the 
army is still composed of men and of BrUom^ 
And shall they — though they have exerted 
their valour in the cause of fanaticism, — 
though they have been led to fight the battles 
of oppressors, and establish the thrones of 
tyrants ; shall they, in violation of the privi- 
leges of freemen^ — forgetful of the glory [of 
their country, — ^forgetful of all that is dear to 
themselves,— contemptuous of all that they 
Ibve, and regardless of the fete of posterity, 
— shall they turn their arms to destroy the 
constitution of their cx»untry ? What 1 after 
displaying such feats of valour that has immor* 
talised them for ever,— will they stoop so low 
as to become instrumental in thetuin of their 
country, fot. the sake of a faction which has 
oast a deep shade of disgrace over all the 
splendour of their victorious achievements? 
I appeal to the army itself for a reply. I hear 
h burst like thunder from man to man, from 
line to line, from camp to camp, — No I Never I 
Never ! We fight not for the destruction, but 
for the preservation of the rights and privi- 
leges of our beloved country 1*^ 

You will please here to remember, that you 
are told, in the outset of the publication, that 
under the eireumstances stated, allegiance has 
become forfeited, and is to be thrown off; but 
in the passage I have just read, as if the 
readers might have the army in view to restrain 
their patriotic fury, their fears are removed, 
and they are encouraged with the hope^ that 
the army will not fight against them, but will 
'^u ^d co-operate with their projects of in- 



surrection. Can any thing more insidioiis,^' 
any thing more wicfced, — any thing more sedi-* 
tious be conceived or imagined f I vrill fairly 
teMyou, that, in my opinion, no pubticatioa 
has ever been^ brought before this court of a 
more vricked and pernicious tendency, none 
better calculated to produce turbulence and 
commotion, than that which I have read to you. 

Look to the publication for which Palmer* 
was tried at the circuit court at Perth in the 
year 1793; and was tntosported to Boixay 
bay; and although these times ai% not of a 
description to render it necessaiy to inflict the 
same degree of punishment upon the prisoners 
as was awarded in that case, ^ere is not any 
thing in it nearly so inflammatory, so sedittooa, 
tending so much to excite discontent against 
the government, or to introduce turbulence 
and commotion, as there is in the paper which 
is this day brought under your consideration. 

That paper I think it my duty to read toyoti 
from the records of the court. It is in these 
terms: 

'• Friends and feIlow-citisen9;^You, who 
by your loyal and steady conduct, in these 
days of adversity, have shown that you are 
worthy of, at least, some small portion of 
liberty, unto you we address oor language and 
tell our fears. 

^ In spite of the virulent scandal, or mali* 
cious efiorts of the people's enemies, we will 
tell you whole truths ; they are of a kind to 
alarm and arouse you out of your lethargy. 
That portion of liberty you once enjoyed is fast 
setting, we fear, in the darkness ot despotism 
and tyranny! Too soon, perhaps, you who 
were the world's envy, as possessed of some 
small portion of liberty, will' be sunk in the 
deptb of slavery and misery, if yotr prevent it 
not by your w^l-timed efforts. 

** Is not every new day adding a new Unk 
to our chains ? Is not the executive branch 
daily seizing new, unprecedented, and unwar- 
rantable powers P Has not the House of Com- 
mons (your only security from the evifa of 
tyranny and aristocracy) joined the coalitioa 
against you? Is the electioti of its members 
either fair, free, or frequent ? Is not its inde- 
pendence gone, while it is made up of pennons 
and placemen ! 

** We have done onr duty, and are deter- 
mined to keep our posts, ever ready to assert 
our just rights and privileges as men, the chief 
of which we account the right of ilniversaA 
suffrage in the choice of tliose who serve ia the 
Commons House of Parliament, and afirequcnt 
renewal of such power. 

** We are not deterred or disappointed, by 
the decision of the House of Commons coa- 
eeming our petition. It is a question we did 
not expect (though founded on truth and rea* 
son) would be supported by superior numbers. 
— Far from being discouragea, inre are more 
and more convinced that nothiag can save this 
nation from ruin, and give to the people that 

• 3 iiow« Mod. St. TV. 237. 



^ 



mMi namat Btirdjw Stdilm. 



A. D. 1817. 



17« 



Iw^pptneaM wlud^ tli^ liare a right to look for 
vxXex govenmieBty tet a refonn in the House 
of Omudods, fiHiiKied apon the eternal basis 
of juatioey faiz^ fiee, ana equal. 

« Felloir-citiiena; — The time is now come, 
when y9m ammi either gather roond the fabric 
of ]ibcr^4o •uppori it, or, to jour eternal in- 
iumjt let U &U to the ground, to rise no more, 
huiiivg along with it every thing that is vala- 
aUe and dear to an enligbtened people. 

** You' are plunged into a war bj-a wicked 
ministrj and a eompliant pa^iament, who seem 
caielesa and unconoemed for your interest, 
the end and deaign of which is almost too 
horrid to lelale, ue destruction of a whole 
people merely hecanne th^ will be free. 

^ ^ it your eoaunerce is sore czan^d and 
almost mined. Thooaands and ten thousands 
ofyow fellovF-dtizena, from being in estate 
ef prasperi^, are reduced to a state of poverty, 
au8eijr> and wretchedness. — A list of bank* 
lupleieiy ^ineqnalled in any former times, 
fionns a part in the retinue of this Quixotic 
expedition ; your taxes, great and burthen- 
some as -they are, must soon be greatly aug- 
mented; your treasure is wasting fast; the 
blood of your brethren is pouring out, and all 
this to fonn chains for a free people, and 
eventually to rivet them £qt ever on yourselves. 
^ To the loea of the invaluable ri^its and 
privileges which our fstther's enjoyed, we im- 
pute tUs barbarous and calamitous war, our 
ruinous and still-growing taxation, and all 
the wyyt"— and oppressiops which we labour 
under. 

^ Fellow-eitizens ; — ^The friends of liberty 
call upon j<»9 by all that is dear and worthy 
of possessing as men ; by your own oppres- 
sions; by the miseries and sorrows of your 
suffering brethren; by all that you dread; 1>y 
the sweet lemembrance of your patriotic an- 
eestois; and by all that your posterity have a 
ri^t to expect from yon, — to join us in our 
exertions for the preservation of our perishinff 
libnty, and the recovery of onr long lost rights.^' 
Gentlemen, this is the publication which 
was held by a jury in 1793 to be a seditious 
libel; and 1 ask you, whether from the be- 
ginning to the end of it there is anv thing 
more offensive, any thing more calculated to 
alienate the minds of his majesty's subjects 
fern the government and constitution of the 
country, any thing better imagined for leading 
the people to the use of physical force and to 
open reoeUion, than is to be found in almost 
every passage of. the publication lying on the 
table f Sure I am, that there is not to be 
found from the beginning to tlie end of 
Palmei^s Address, a direct recommendation 
to the people to thow off their allegiance, — 
that there is no incitement to actual rebellion 
— that there is no encouragement held out to 
the people,. that if thejf rose to enforce the ac- 
compliAment of their purposes, the army 
would ioin them. But in the pamphlet upon 
your iMe, all this is done in the most plain 
and direct texms. The House of Commons is 



said to be corrupt, and not to be the represen- 
tative of the people : the whole rulers of the 
country are stated to be corrupt, and while 
guihv of the most gross oppressions on the 
people, caring for nothing but their own base, 
soroid, and tyrannical purposes. The clergy 
are said to be hirelings, mlsely deluding the 
people with the notion of their distresses ori- 
ginating with Providence ; and while the 
people are called upon to throw their alle- 
giance to hell, they are encoumged with the 
certain hope of Uie support of a brave and 
victorious army. 

It seems impossible in my mind, therefore, 
to doubt, that if the publication in Palmer's 
case was seditious, that now upon the table 
can be otherwise ; that if the one merited 
punishment, the other can be innocent. On 
the contrary, I will tell you foirly, in my view 
of the subject, the present is the worst of the 
two. 

It is now proper that I should tell yon, that 
the same course of defence which has, been 
pursued to-day, was followed in the case I 
nave just been speaking of. In Palmer's case 
it was said — ana we were told to-day that it 
would be proved — ^that language similar to 
that used in this publication had been em-' 
ployed in petitions to the House of Commons, 
without censure or animadversion ; that lan- 
guage not less strong was employed by Mr; 
Pitt, and l^ the duke of Richmond, and 
various other statesmen; and the inference 
which was drawn in the year 1793, and which, 
I presume, will be drawn to-day, is, that it 
was legal for Mr. Palmer in his case, and for 
the prisoners in theirs, to employ the language 
which those statesmen have made use of. But 
my learned friend (Mr. Clerk), who was also 
of counsel in the case of Psdmer/was told 
then, and I beg leave to repeat it to you now, 
that the ouestion before the jury and the court 
was not how often the crime of sedition had 
been committed, or how often it had been 
committed with impunity : il was not whether 
petitions containing seditious matter had been 
presented to parliament, without the authors 
being punished : it was not whether parlia- 
ment had allowed seditious words to be used 
in its own presence without animadversion.; 
and, last of all, the question was not whether 
the law officers of tlie Crown had allowed 
their duties to sleep, and passed over sedition 
witjiiout bringing prosecutions : but the ques- 
tion simply was then, as it is now, whether 
the crime attributed to the prisoners at the bar 
amounted in law to sedition, and whether, if 
it did, they were guilty of having committed 
it. If it were proved, that five thousand 
petitions containing language eoually strong 
as that found in this publication, had been re- 
ceived by parliament, or that the House of 
Commons nad permitted language ten times 
stronger to be used in their own presence, 
that can never establish that the prisoners have 
not been guilty of the crime of sedition charged 
in thb indictment. The House of Commons 



Tl] 



S7 GfiORGB III. 



Trial ofAiuandtr M'LmrM 



C79 



has no power df making or declaring law, or 
of legalizing that which is oontrary to law. It 
is but one branch of the legislature, and if it 
permits language to be used reflecting on it- 
self, on the Crown, or or the House of Lords, 
which erery lawyer out of it holds to be sedi- 
tious, which courts of law have found to be 
seditious, that is no reason why the same lan- 
guage, when employed out of doors with a 
view to corrupt me minds of the king's aob- 
j'ects, and to excite disaffection and commo- 
tion, shaU not be repressed with the punish- 
ment of sedition. 

In the course of the statement with which 
it has been my duty to trouble you, and which 
I have put into as plain language as T could 
employ, I had occasion to mention that in all 
^ases of sedition the state of the times when 
the act complained of has been committed is 
to be maturely viewed and considered; that 
what ma^r be innocently done at one period 
may be highly criminal at another ; and that : 
under one state of the country, language may ' 
be used, or a ^crriting published, with impunity, ' 
which, under another, would render the author 
amenable to the arm of the law. Keeping this 
in your minds, it is, I apprehend, impossible 
for you to forget the period when the speech 
in question was made, and the libel before you ; 
was published. It has been proved, and I j 
freely admit, that at the time when all this took ' 
place the' distresses of the country were not 
only great, but that the misery of the lower 
classes of the people had reached to an extent 
seldom experienced in these realms. Those ' 
calamities, overwhelming as they were of them- \ 
selves, were, however, aggravated by this, that | 
at the period in question they were converted, 
^ all of you must recollect, into an engine for 
jexciting discontent throughout the great body ' 
of the manufacturing population, who had then i 
been thrown altogether out of employment. | 
ITie most unprec^ented exertions were then ' 
cmplojred, by the circulation of inflammatory 
and seditious tracts, to excite the minds of the 
people against the settled order of things in the 
country, wWle, with a malignity before utterly 
unknown amoiig us, and having a precedent 
only in the means that were employed for pre- 
paring the people of France tor the direfol 
event of the Revohition, a simultaneous ac- 
tivity ivas employed in the dissemination of 
immonfl, irrehinoitf and indecent works, to 
subvert the religious principles and habits of 
the people. No doubt public conventions, as 
in 1793, were not held, because all things 
which had then attracted the eyes of the police 
and the administrators of the laws, and were 
repressed by the Judgments of this court, were 
carefully avoided. But a system no less dan- 
gerous had then been adopted hi their stead. 
That system was, to keep the whole population 
of the country in a state of ferment, by con- 
voking meeting after meeting in the different 
manufacturing and populous districts, under 
the pretence of petitioning parliament against 
abnses. At thesa nreetingv, by the use of in* 



flamm'atory language of oae 4escifpfioa or 
another, the minds of the labouring dasses had 
got into a state so unsettled, as to have become 
prepared for violence of any kind, to which* 
their leaders mi^t direct them. In some 
quarters the e(re<Hs of thil system had become 
iM. less tremendotts than those of its prede- 
cessor in 1793. In others, its eoasequetieea 
were even worse. We know the effects in 
Glasgow. You have lately beard the fruta of 
it in Manchester. 

This situation of public aAnrs, which ia 
matter of noj^riety, must entei- deeply iofto 
your consideration in weighings the views and 
intentions of the prisoners in committing those 
acts which I have charged against them aa in-; 
ferring the crime of sedition. But, indeed, of 
the malignity of their intentions I think you 
can have no doubt. It is impossible for 'm«y or 
for you, to look into the minds of men, and to 
discover what is die purpose at the bottom of 
their hearu. . Tliat can only be galfaeied frosa 
their actions. Now, if you consider the time 
and the situation of the country when this 
speech was delivered, and this pamphlet waa 
published ; and if you weigh the terms of tint 
speech, and the various passages of that work, 
the whole of which will be before yon, wb4 
which I trust you wiU seriously consider, it 
seems to me impossible that you should hesitate 
in forming a decided and clear opinion that 
the purpose of the prisoners was to render the 
people disaffected to the government, and to 
excite them to acts of commotion and rebellion. 
If such is your opinion, it is your duty to ftnd 
the prisoners guilty. , 

No doubt they have been represented aa 
persons of good character. Be it so. Witii 
their character in general I have nothing todo^ 
and leave them every advantage they may have 
upon this bmnch of the evidence. To myself 
it appears, that what has been provfed of their 
diaracters, however good in other respects, ia 
against them in this case. In that point of 
view^ I should state the evidence respecting 
their characters to you, w;ere I to dwell upon 
it,which, however, I shall reftain from doing. 
Indeed I shall notice it no further, dian merely 
to mention, as matter of curiosity, that evidence 
of the same sort was brought forward and in* 
sisted upon in the trials of 1 794 and 1794. In 
fact, the defence in the present case seems 
modelled upon those cases of a similar descrip- 
tion that have gone before it, and will^ I trust, 
meet with the same fate. 

Having thus detained you at so great length, 
I shall leave the case to you, perfectly satisned 
with having done my duty in bringing it before 
you. It appeared to me, after a full consid^ 
ration, to oe a case which could not be passed 
over, as it was necessary to ptit Kmtts to the 
circulation of the dangerous and sedttious pub- 
lications diisseminating at present in every 
quarter of the country. It is for you tK> say 
upon the evidence, wnether my opinion has 
been correct or not. I 'am satisned myself 
fhMX my opinion is right, and that A« e xpi e s * 



Jg\ Mi lUmmu HtM/W Btdkm. A. Du 1S17. [74 

MOOS chMge^ ig Hit i n di cU ae pt wn seftlkwi ; bo Wntlon to eioite thsm lo NdiUoiiom- 

«iid I hare had to-day tbe Mtufection to bear betlion, to any specMs ef viMance, or to asy 

dMrt the court thtaks 90 likewise. You will unlawful act. They bad i»et with the fair and 

mtterwaids learn their loidahifn' opinion opon legvU pnrpoae of petitiooiAg tho different 

die endence, as you hare now heard mine, branehes of the legieiatttre for reKef min^t the 

That I hare diooght H my dnty to fpre you grieranees of which they complained ; and in 
plainly and witbont ramish. Bat clear though ! speaking of those grieranceSy the panel did 

1 he on the whole case, I shall be satisfied with nothing more than assist in the prerloos de» 

whatever rerdict yon may give, and I can hare liberations necessary to ascertain the riewe 



no doubc the eonntry will be 90 likewise. 

Mr. Clerk. — Gentlemen of the jnry, in the 
kmg «nd able argument which yon have just 
feea.Td, the lotd advocate has attempted to con* 
Tinoe yoa that both of the prisoners at the bar 



and wishes of the people assembled, as to the 
natare of the applications that ongbt to be 
made. This defimce, so important for the 
panely was opened at the beginmng of the trial ; 
tmt so far from attempting to refoteity the 
lord advocate did not, in the course of bis vety 



bave been guilty of the cnmes laid to their { long argument, so much as aHude to it : and 
dMTge. I attend yon for one of them only, | yon wiU see that the indictment, unfairly sop* 



Mr. If ^Laren^ and shall leaive the defence of 
the other, Mr. Bain), to bis own connsd, Mr. 
JeiVey, who is able to do the most ample justice 
to Me client. 

Mr. McLaren is aeeused of having made a 
•editioQS harangue to thf people assembled at 
« numerous meeting held in a field near Kil- 
tnamod^ and of having afterwards caused his 
•peedk to be printed, along with other speeches 
«f a like tendency, as a pamphlet, which was 
sold and distributed in that neighbourhood. 

That Mr. McLaren was present, and spoke a 
lew sentences a^ the public meeting already 
nentipBed, is certainlv true; but I hope to 
satisfy you, that considering Uie occasion and 
.meumsunces under which it was delivered, 
tihe speech (if speech it might be called) con* 
tahied nothing seditious or otherwise criminiU. 
As to the pubKcatbn of the pamphlet, Mr. 
M'Laren had no concern with it, and knows 
nothioff of it. There is no evidence that he 
sosistcd in the printing or publication even of 
that speedi whidi is said to have been spoken 
%y himself; and certainly there is do pretence 
Sot saying that he took a concern in the pub- 
lication, nle, or distribution of the pamphlet. 
X hope, theiefbre, that I may disencumber my- 
self of this branch of the accusation, as not af- 
/ectiog Mr. McLaren at allj and leave it, in so 
fer as it may be thought to aff^t the other 
panel, to the consideration of Mr. Jefi^y, who 
win address you for him. 

As to the criminality of the speech at the 
public meeting, moch eloquence nas been em- 
ployed, and some points, both in £ict and in 
law, have been stmined to the utmost against 
the panel, in declamatory comments on the 
wickedness of hissupposed intention to blow up 
the flames of sedition In die multitude, as well as 
OB the supposed illegal and dangerous tendency 
of his words, as being utteriv subversive of the 
Bnrish constitution and of all good goveri^ 
meat Bat in making these violent and un- 
charitable strictures, it wis forgotten that a 
publii; meeting having been called for lawful 
purposes, tiie occasion rendered it necessary 
mt the oanel (who had been appointed to 
open the business) should make some remariis 
on the subject of public grievances. This is 
Ins dcKxics* In addfcssisg the people, ha hod 



pressing the object and purposes of the lawml 
meeting at which the panel made his speech^ 
represents it, as well as the other s p eechet 
there made, as seditious and inflammatory 
bamngaes, uttered without the pretence of asy 
fair or legal purpose. These cireumstances 
are not a little eitraordinarr, if the publis 
prosecutor rsally bad hopes of being soccessfU 
m his charee. With such hopes he should 
have argued the case as it stands upon the 
evidence : he should have attempted to answer 
the defence on the fact, or on the law, or ob 
both ; whereas, by taking no notice of a ds> 
fence tmquestionably relevant, he either held 
it to be unanswerable, or intended to rely upe* 
a doctrine (which can never be admitted, and 
which, indeed, the lord advocate hisuelf did 
not directly maintain), that occasion and cir* 
cumstances can make no difl'erenoe as to the 
criminality of words — ^thal the same words 
must, if they are seditious on any ocoa sio B, 
be seditious on all occasions, without the Uaal 
regard to the purpose or intent of the speaker. 
But against such an absurdity it is UBBeecssaxy 
to reason. Every one must allow that the 
same words may be highly criminal, or alto- 

S ether innocent, nay, absolutely rtqaired by 
uty, according to the difierent situations is 
which they may be uttered ; and on this ground 
I maintain, that even if the words of the panel 
could not have been spoken without criminaUty 
in other situations, they were justifiable as 
they were spoken to men assembled in delibo- 
ration about lawfbl and dutifbl petitioBs, rs^ 
ptesenting their grievances or complaints to 
the different branches of the legislature-. Nor 
does it appear of any hnpoitanoe that Warm or 
intemperate expressions, not sufikieotly re- 
spectful to their superiors, oocasiooall^ fell, in 
the course of their deUberatioBs, fVom people 
in the lowest mnks of Hfe, unable to express 
themselves with that decency which is required 
fh>m men In higher sftoatioos, if it be certain, 
which it is, that they looked foiward to no 
other result from their meeting, than the exe^. 
cise of their unquestionable right to petitioB, 

Suietlv and peaceably, without disorder or 
tstuibaace. 

The Tight of pelkloaiag has brionged to the 
subjects of tins eouBtry, and svBo to lihe 



741 



£7 GEORGE IIL 



Trial qfJUtmdgrM'lMm 



[70- 



BMBftesi of the peopie» from ancient times* 
Since the Revohition it has never been questi- 
oned; and immediaiely before that glorious 
event, it was attacked onlj to enable a tyian- 
Bioal government to subvert the public liberty. 
But the attack was repelled even in the worst 
of times ; and the first act of die government 
of King William and Queen Mary was to 
confirm the right of petitioning, as a frand^ise 
•f which the people could not be deprived. 
It has ever amce been considered as a right 
unalterably fixed by the fundamental laws of 
the state ; and, accordingly, though the ezer^ 
mse of it is suj^sed to be sometimes unplea- 
sant to the government, yet no administration, 
and neither House of Parliament, has hitherto 
thought proper even to disoourage the people 
in the exercise of their right of petitioning. 
How many hundreds, or rather thousands, of 

Eetitioos have been presented to the difierent 
ranches of the legislature within these few 
years, representing as grievances thinn which 
are not admowled^red to be such 1 and yet the 
petitions, as commg from the people in the 
exercise of their right, have been graciously 
received by tliose to whom they were address- 
ed. And so important is the right of petition* 
lAg, that every other right in the people has 
bc^« supposed to depend upon it, inasmuch 
as the people, if deprived of that right, would 
be in oanger of losing the protection necess^ 
to defend them in their other rights. 

It is obvious that a fair communication from 
the people of their grievances and discontents 
to the legislature, which has the power, and 
whose duty it is to protect them, cannot be 
•edition, if they have a right to make such 
communication. If the people should petition 
parliament without hanng the right by law 
to do so, these petitions might be, and in 
almost every case would be seditious and 
dangerous, in raising or increasing discontents 
and disturbances ; because every complaint of 
a public grievance has a tendency to create a 
public discontent, and this is illegal and se- 
ditious in every case where the law does not 
allow it. For the same reason, any violent 
complaint of public grievances may be sediti- 
ous or illegal, where it is not addressed to 
persons having legal authority to take it into 
consideration and give relief. But it would 
be a solecism to say, that a petition to the 
King or to either House of Parliament, stating 
grievances, and praying for redress is sediti- 
ous, because, 1st, it is allowed by law ; 2dly, 
the persons addressed have an authority to 
take the complaint into consideration and give 
relief. Petitioning is indeed considered as a 
means of removing discontents and preventing 
disturbances, not as a means of raising them ; 
and this may be true it some cases, though it 
is not always so, and we have frequently seen 
a forment of discontent much increased by 
numerous meetings^ of the people, called for 
the purpose of petitioning. But stil) the legal 
'right of petitioniog is unquestionable ; and it 
Aust be: supposed that this right, though it 



cannot be used without expressing discontent, 
and thereby communicatiag it among the peo*. 
pie, and possibly raising it, where it had pre- 
viously no existence, may be legally (and 
without any crime, or the fear of criminal pro- 
secutions) used in every case whatever, even 
though the use of it should in some respects 
have a bad tendency; the utility, and even ne» 
cassity of presenting the right, counterbalanc- 
ing the mischieCi which may be occasioned by 
the seditious or discontented spirit which may 
he raised by it. 

But it must be plain, that if the people have 
a right to state the grievances in petitions for 
redress of grievances to the different branches 
of the legislature, it follows as a necessary 
consequence that they have a right to state 
these grievances in the plainest language, and 
even in what is commonly considered to be 
strong or coarse language in the description 
of public abuses, if they do not in their peti« 
tions violate that respect that is due to the 
legislature : under that restriction, tb^y may 
assert in their petitions that there are the 
grossest abuses, even in the legislature itself. 
And you need not be told, that even petitions 
of that kind are occasionally sent from all 
quarters of the country, when discontents pre- 
vail among the people. A stranger to the 
peculiarities of the British Government might 
think it odd that petitions of this class, con- 
taining inferences of a nature apparently so 
irreverent, not only indicating an extreme 
degree of discontent in the petitioners, but 
directly tending to raise and aisseminate the 
same kind of discontent through the whole of 
the kingdom, should be tolerated, especially 
where it is plainly the opinion, not only of the 
different branches of the legislature^ but ato 
the opinion of the more sensible part of the 
community, that the petitions are very ill- 
founded in their representations of grievances, 
and demand, by way of redress, new public 
measures or arrangements, which would not 
only be useless, but dangerous and even cala- 
mitous. Such considerations, however, have 
no influence, or very little inflnence, in the 
question, whether the people have the right to 
present their petitions, and whether, when 
offered, the petitions ought to be received. 
On the contrary, it has long been held by the 
legislature, that, as the people have the right 
to petition for redress of grievances, so they 
have the right to state what they consider to 
be their grievances, whether they are really 

frievances that ought to be redrnsed or not. 
he general rule is, that however unreasonable, 
or unfit to be granted the prayers of the peo- 
ple in their petitions may be* it is not unfit to 
receive the petitions, and the people have a 
right to present, them, a right that .is unalie- 
nable. 

But further, if the right of petitioning be- 
longs to the people, they must of necessity 
have the right of deliberation upon the subject 
of their petitions, to consult with each other 
at public meetings,, to be advised by thoae 



n^ 



and Thomat Bmrijvr SediUon. 



A. D. 1817. 



C78 



vho are able to advise (hem, or tMnk them^ 
seWes able, upon the various points which may 
ooeor in considering what are grievances, and 
what are not ; and if there are grievances^ what 
are tiie remedite that ought to be proposed or 
prayed for in their petitions. With regard to 
the important claims which may be made in 
petitions to the legislature^ every man neces- 
sarily must have a right to meet with his 
fellows, either in small or in great numbers, 
and to discuss the matter with them* One 
man may think that annual parliaments ^re 
necessary ; another tlmt they would be hurt^ 
ful or impracticable. On this trial, it is not 
necessary for us to consider whether annual 
pdliaments and universal sufitage are good or 
CMid ; and, on this occasion, I have nothing to 
do with these questions. But I say that it is 
not unlawful to petition for either. And ^ 
neraOy, whatever the grievance, or fancied 
grievance is, it may lawmlly be the subject of 
a petition to the l^slature ; and for the same 
leaaon it mav lawfully be the subject of deli- 
beration and discussion, even in public meet- 
ings held for the purpose of petitioning. 
You vriU observe, that there can be no limits 
to this right of petitioning, and previously de- 
liberating; for when itislimitea the right is 
gone. Tbe right is to present unreasonable 
as well as reasonable petitions. Or if un- 
reasonable petitioningwere unlawful, the leeis- 
latnre alone is the judge of what is reasonsmle 
or unreasonable in ^titions. If the right of 
petitioning could be restrained by the courts 
of law, there would be an end of the right of 
petitioning,— a fundamental law of this mo- 
naichy, — a law, the palladium of our other 
rights. 

On iht occasion of which we have heard so 
nndi, when the people in and about Kilmar- 
nock met to consider whether they should send 
addresses to the legislature on the subject of 
their grievances, various speeches were made, 
and we are told by the prosecutor, that these 
speeches, and in particular the speech of 
M^Lareo, were seattious. In regara to the 
<|Destioii, whether or not his speech was sedi- 
tMNiSy he pleads that the right 6f petitioning 
necessarily implies the right of previous dis- 
cDssion. If this be true, apply it to the' case 
before yon. At such a meeting a speech may 
possibly be seditious, where it appears either 
that the meetine was called, not for its pro- 
fessed object of petitioning Parliament, but 
merely to aflbrd opportunities to make sediti- 
w» speechea; — or that though- the meeting 
\ttmafidt assembled for petitioning, the speech 
went beyond its proper bounds, and was se- 
ditious in statements not justified by the oc- 
canoo. As to the first ofthese cases, there is 
not even a pretence for denying that the meet- 
ing in qaestion was 6011a fidt called for the 
purpose of framing petitions to Parliament. 
1 refer to all the evidence which von have 
beard. It was a meeting collected for that 
purpose, and for no other, nor was any further 
purpose ia view. 



The alignment of the public proseeotor, said 
the evidence adduced, will apply only to the 
second case supposed, that the speakers at a 
meeting hona Jidt assembled for petitioning, 
had gone beyond their bounds, and deviated 
into sedition. But has this been made out 
against Mr. McLaren ? His short speech, though 
coarse, was suitable to the occasion, as an ex« 
hortation to petitioning, and nothing else. 

We were told, indeed, that this case is simi* 
lar to that of Fvshe Palmer, who many year* 
ago, was tried for sedition, foond guilty, and 
sentenced to transportation. But ihiM la a , 
total mistake. The case before yon is Tery 
different from that of Fyahe PbIomt, and from 
all the other cases which have hitherto been 
tried before the Court of Justidary. It has 
been reserved -for the present Lord Advocate 
to bring jsuch a case as the present to trial, in 
which, if the verdict find the panels guilty of 
sedition, the right of petitioning, hitherto un- 
challenged, seems to be attacked almost ia di- 
rect terms. The case of Fyshe Palmer was 
that of a seditious libel, an inflammatory 
hand-bill, containing seditious language, with- 
out any proposal to petition Parliament. We 
were told that this case of Fyshe Palmer 
was defended on the same grounds that were 
stated in defence at the 'beginning of this trial ; 
yet the lord advocate declined to meet thai 
defence particularly, and bear it down by the 
triumphant authority of Palmer's case There 
was no resemblance between that case and 
the present. Fyshe Palmer recommended an 
appeal, on the subject of grievances, not to the 
legislature, but to a mob, the scum of the earth 
in the neighbourhood of Dundee,-— to the so* 
verign authority of the multitude. The de- 
fence in that case was disregarded, — ^but what 
was it ? It was said, that in this free govern- 
ment it is necessary that the press should be 
free. It was said that the people must have 
freedom to attack public men, and must be en- 
titled to publish, not treason, not sedition, in 
a palpable form, but their thoughts in a free 
and independent manner. It was added, that 
Mr. Fyshe Palmer was. not very sound in his 
mind. These were Uie defences for hia. 
You wiU perhaps be surprised when I tell yooi 
that m^ Lord Abercromby, who tried the case, 
held, m bis speech to the Jury, that if a peti- 
tion to Parliament had been in view, the libei 
of which Fyshe Palmer was found guil^ would 
not have been of so aggravated a desoriptloD, 
— ^would perhaps not have beeu considmd a 
libel ataA* '<Mudi (be reinaiked) has been 
said of the purity of the intentions of the so- 
ciety ; it is said they had nothing in view bat 
moaerate .reform. But, Gentlemen, you .will 
consider how (ar that is consistent, either vritii 
the tenor of the address itself, or widi what is 
sworn to by Mealmakeri who drew the first 
draught of it, and who swears expressly, that 
at that time he had no second petition in 
his contemplation' and that what was after- 
wards to DC done would have depended 
upon eircumstanees. I much fear that here 



57 6£0BGB HI. 



791 

)feftl»iker » (iriliiig tfat tnAp aad tWt if 
Ibegr had not been altettded to^ the conduct 
of Ihis lociety would not kave proved so pure 
«• their iateotiotis ai« said to iMtre been ," * In 
tbat C«i6t fott will obsfenwy that a seditkNis li- 
bel wit diapeised over the couDtir without 
aiijt GOnsequeoce betnf cdBteMplated bat that 
of inAanuDg the ninds of the multitude. On 
the other MtoAf we bave been at paiu to shew, 
that the panels in tfaia ease were quiet oiderly 
persenty net eoacemed witb any seditioue ao- 
oieties; not connected with any political parttet, 
only feelkg distress thinking they had grier* 
anees to eemplain of^ and that tbrf could bet^ 
tsr tbefar ftituaitions by petitioning parliament. 
Xbef met together in the moet orderly man- 
neiv-^dellbemted as it is usual to do in public 
meetings^ — ^prepared resolnftionSy-^prepared a 
petitioa,— and atgned ity-^and that ^tition, 
Ibougb couched in strong tenna, was presented 
In the Houses of Pariiament, considered^ re* 
eeivedy and laid on their tables. Is the right 
tf petitiening^tben, to be interrupted in this 
entraordina rymanner, by bringing the peti- 
tioners into tbe Conrt of Justiciary 9 

RecoUet that this was a meeting for consider- 
ing tbe propriety of petitioning £e legislature^ 
and that the meeting would have been allOM 
gather nugatory unless the persons tbeu met 
bad been allowed to state thmr opinions to one 
another. Ih the first pi^ of this indictsMnt, 
dm panel is chdoged with baring wickedlv and 
leWniously delivered ^< a speech coutaining a 
number of sedttiens and inflamoiatory remarks 
and assertions^ eakulated to degrade and bring 
iota coatdmpt the Oovemment and legislature^ 
and to witham^ therefrom the confidence and 
aibctiotts of the people, and to fiU tbe realm 
witb trouble and disseiitien.'' Gentiomen» 
vheiever the people are exposed ts grievanees 
U»ey aeeewariJy must, when tbey meet to con- 
sider the means of redrem, exprem their sense 
of these grietances ; and I ask whether H be 
possible 10 state public grievsinces, especiaUy 
grievanees arising from sndk^ a souroe as over* 
lantion^ iritboiit in soose w^ or other reflect* 
ing on the Government* In the exercise of 
our right of petilioning a^sinst grievances^ 
these grievances must be fAentionod( and U 
isisspomiUe to B^ntisn them^ or even to 
allude to thein, without briuging tks Govet»« 
SmM into discredit. For exam^ let a peti* 
lion be ptesented against ovcr*taxati#n» What^ 
ever were the causes of the evil^*-wars just 
«ran)us^ — unavoidable misfortunes^ or mis- 
•onduetin public afiaits^^^ is lawful to state 
the grievnnce. But can it be steted withont 
aiElcliBto mure or less^ of attempting to ^iffest 
Ae public opinion su tathe mentsor demerits 
«f adminietintieQ? Every piAHe stateiaeni 
mspeeting pufalie afidis has that tendency. 
Bat are the people to be interrupted on soeh 

r lands, in tbe execcise of their just rights . 
ii of the essence of their right to cooBfiain 



Trial ^Alixanier McLaren 



[S0 



* Fysbe Palmer's oase % How. 
*■ 371. 



Mod. St 



of grievgnces, and therefore I approAkend yo« 
must disregard entirely those general expres- 
sions in the iodlctment, charging McLaren's 
speech as tending to bring the Government 
into contempt. Tbe petitionea felt griev-> 
ances ; — tbey prepared petitions, and it is im- 
possible to state a puohc grievance without 
throwing blame upon the Government. I do 
not mean to examine the question, whether 
there really was any blame attachable to 
Government ; for it is the same thing in thin 
case whether the petitioners were right or wrong 
in their statement. My defence is, that the/ 
were in the fair prosecution of legal views. 
Suppose no words to have been uttered but 
what would, in other circumstances, have beeis 
considered seditions, their baring had a righC 
object in view is a good de£mce. But every 
sort of obloquy has been thrown on the petiti-> 
onersy without any notice of the lawful object 
tbey bad in riew, as if tlieir object were to be 
kdd entirely out of consideration. 

The legality of the object, and the situariom 
in which tbe speeches were uttered, ate tbe 
most important eircumstances of the case. 
Every thiing else is of a trivial and subordinate 
nature. But let us see what tbe panel is 
alleged te have sai4* No positive evidence 
has been adduced te prove any part of hie 
speech, except a few words at the end of the 
passage quoted in the indictment, and, so for 
as I bave observed, you have only the uneer* 
tain evidence of one person to these words* 
I shall remark upon the words in the indiel« 
ment. 

'* That our sufoings are insupDorte.blc^ ie 
demonstrated to the world.'' I ao not amy 
whether Uieir sufferings were insupportable or 
not ; but tbey appear to have been sevcfre^ and 
tbe pec|)le were met for the purpose of cob* 
sidering them, and to join in petitioning fmg 
relief. Here I presume is no sedition. 

" And that they are neither temporary, aer 
occasibned by transition from war to peace, in 
palpable to all, though all have not the courage 
to avow it.'' I do not say that proposition in 
palpable to eveiy body. Some are daspeeei 
to tnink that the calamity has been occasioned 
in consequence of the sudden transition fmna 
war to peace, and some dispute that propo* 
sition. Some are of opinion, that if we bad 
continued tbe war, at an expense of a hundred 
millioos a year, we should have infolUbly se* 
cured the national prosperity and greatneas* 
I shall not attempt to settle these points, not 
is that neeessaiy to the present argument^ and 
t beg leaive to protest against the idea that I 
give any opinion upon them at all. Peibnpt 
Mr. McLaren may include me in his censure 
for my went of courage in not avowing m^ 
opinion. 

** Tbe fact is ire are ruled by men only s<h 
licitous for tbeir own aggrandisement; and 
they care no further for the great body of the 
people,, tban they are subservient to their ovns 
accursed purposes. If you are convinced of 
this, my countrymen^ I would therefore pu) 



81] 



and 



Bairdjbr SedUion. 



A. D. 1817. 



[83 



Ike i^itetUoQ, we jcn degeeerate enough to 
bear it ? Shall we, whose forefathers set limits 
to the all graspisf power of Rome ; shall we, 
whose forefatheiVf at the never-to-be-forgptten 
field of fiaanockbuniy told the rotghty Edward, 
at the bead of the most mighty army ever trod 
•D Brilaio s soil, ^ Hitherto shalt thou come, 
eod no farther ^ shaH we, I say, whose fore> 
fatheis defied the efforts of foreign tyranny to 
enslare our beloved country, meanly permit, in 
our day, without a murmur, a base Oligarchy 
to feed th^r filthy Termin on our vitals, and 
rule us as th^y will ? No, my countrymen/' 
A commentary was made on this passage 
though it is not proved that the panel ever 
spoke it. The prosecutor takes it for granted, 
without evidence, that the words were spoken. 
I am, therefore, not under the necessity of de- 
fending these words. But are they in reality 
so culpable ? Are they seditious ? They are 
mere words of course, in expressing those pub- 
lic < grieTances to which they refer. Every 
child knows that they are the common and 
hackneyed terms used by petitioners for public 
reform, and (excepting one or two allusions* in 
whidi there is evidently no sedition), if they 
are not tame and feeble, they are at least neither 
seditious nor inflammatory. Every word ap- 
plies to the professed object of the meeting m 
petitioning, and to no other object. The pro- 
secutor applies some of the words to the king, 
but this is a misconstruction quite unworthy of 
my lord advocate. Ministers, and the pos- 
sessors of borough interest* are the vile Oli- 
garchy, who are said to feed their filthy vermin 
OQ our vitals, and rule us as they will, and tliis 
attack was justifiable in the way it was made. 
What would avail the right of petitioning, if 
there was no right to petition against his majesty's 
ministers and their partisans ? Ministers may 
be impeadted in parliament for their public con- 
duct, and they may be complainea of by the 
people in their petitions. Are petitions to par- 
liaiDent against ministers to be punished ^a 
sedition ? What hare we here ? The opinion 
of the panel that the ministers have not acted 
in an honest way, or as ministers ought to do. 
The opinion is expressed a little strongly, but 
it does not go beyond legal bounds. The pe- 
tition was uterwards laid before parliament, 
and was received with respect. Now the ques- 
tion before yon is not, whether the ministers 
are culpable or not — not whether lord Castle- 
reagh or Mr. Vansittart might bring an action 
fcr a libel or defamation— but whether there is 
any sedition in this speech. I ask you, 
whether there is any sedition in complaining 
of these ministen ? Sedition is an attack on 
the sovereign of the state— an attack on the 
government, not on the ministers of the go- 
▼emment. Yon may attack the latter in any 
way> without being guilty of sedition. 

Kit luther, as to the passage about the 
Oligarchy. It is generally understood that a 
few penons, not exceeding 300, are possessed 
of an influence in the House of Commons that 
a very pernicious to the state. Thia is the 
VOL XXXUL I 



Oligarchy, the government of a ihw by uneoiH 
stitutional influence, alluded to in the paner^ 
speech. Is it sedition to take notice,, even by ' 
allusion, of such a public grievance? ]^ this 
sedition? Against whom is it sedipon? 
against d^ Kingl against the Lords? against 
the Commons ? against any branch of the legis- 
lature, or against the legislature taken as a 
whole? it is sedition against no person or 
legal authority whatever. It is, indeed, 
directed against the Oligarchy itself, which, 
in the opinion of the petitioners, is the 
worst «nemy of the King, Lords and 
Commons. The King, Lords and Commops 
ought to be independent ; and, if an uncon- 
stitutional influenoe rules over them, is it se- 
dition to oomplain of that influence ? Every 
friend to the constitution will complain of it, 
if he supposes it to exist. I apprehend there 
is nothing in this part of the charge ; and while 
M'Laren denies having used these expressions 
about our rulers, I say there is no sedition in 
them, i would say so, even if the words had 
been used where no petition to the legislature 
was in contemplation. But, considering that 
the meeting was called for that purpose, * 
nothing can be more unquestionable thaa that 
such langpuage was not seditious. 

I come now to the last of the words quoted 
in the indictment, and I hope to satisfy you 
that there is nothing seditious to be found in 
them. Allow aoe here to remind you of 
McLaren's situation when he made (his speech. 
It has been proved that the task of opening the 
meeting was imposed on him, contrary to his 
inclination, and came upon him rather unex- 
pected ly . It was indeed proposed to him eight 
days before the meeting, but he was unwilling 
to undertake it, and immediately before the 
meeting he pressed Mr. Samson to take the 
business off his hands. An hour before the 
meeting Mr. M'Laren was again urged to open 
the business; and being in soma measure 
compelled to it, he retired for a very short time, 
and made some notes of his short address to 
the meeting. You will see in the whole pro- 
ceeding t^e most evident marks of haste. It 
is not proved that the last sentence was written 
in his notes. On the contrary, it was not 
written. Ue was placed on what is called the 
hustings, and delivered his speech during a 
storm of wind, rain and hail ; from the noise 
of which, and particularly from the rattling of 
the hail on umorellas, it was almost impossible 
to hear what he said. Besides the words con- 
tained in his notes, part of which he spoke, and 
part of which he omitted, he spoke other words 
which. were not in his notes. What these 
words were is uocertain,«as they could not be 
perfectly heard. A single witness told you be 
heard and recollected them, though he could 
not recollect any other words of the panel's 
speech. There is no great reason to rely 
on the recollection of the witness, though 
there is much reason to presume that the 
words had not the meaning given to them 
by the publie prosecutor. The words in 
G 



837 



57 GBOROE til. 



mat i^AbamUfiKr M*lMtK 



fM 



the indictment tre, ^ thoald be be to infatuated 
as to turn a deaf ear to their just petition^ he 
has forfeited their allegiance. Yes, ny feUow- 
townsfnen, in such a case, to heU with our 
allegiance." But the passage is in different 
words according to the etidenee oJT Mr. Finnic, 
whose recollection of words, deliyered in the 
midst of hail and wind, and the noise of um- 
brellas, while nobody else could hear what 
McLaren was saying, is the only evidence for 
the prosecutor of me sedition. Aaother wit- 
ness saijd there was something in the speech 
about hell and allegiance, but he could gi?e no 
intelligible account of the passage. 

Now, is it probable that the panel should 
have so expressed hfmself, or is it proTed that 
he used the words imputed to him ? You see 
the rest of the speech does not appear in the 
same mutilated form with the pas«^ given by 
Mr. Finnic. There is reason to bebeve, there- 
fore, that the passage so mutilated is not the 
passage deliyered bv McLaren. And jret ^ou 
are called upon tpt rely imnlicitly upon Finme, a 
single witness, to the woras of a speech, though 
there was such a noise when it was detiver^ 
that persons near the orator could not hear him : 
And this part of McLaren's speech is said to 
have been seditious. Gentlemen^ you must 
always bear in mind the occasion. No otiter 
passage of the speech was seditious. McLaren 
was recommending a petition to the Prince 
BegenL He was speaking of his royal high* 
ness in the most respectful way^ and in a warm 
strain of ]<mlty. '^ Let us lay our petitions at 
the foot of the throne, where sits our august 
prince, whose gracious nature If ill incline his 
ear to listen to the cries of his people." Here 
is the fondest expectation of being listened to. 
But it is natural to mingle, with the kindest 
and most dutiful sentiments, the severity of 
doctrine and reasoning^ and, on this occasion, 
it is possible that the rigour of our constitu- 
tional law for extreme cases may have sud- 
denly occurred to the mind of the panel. We 
all know that our constitutional rignts and du- 
ties go hand in hand. This has been stated in 
everr possible form in which a proposition of 
the kind can be staled. At the Revolution, 
the Ixnds and Commons held James to have 
abdi cat ed the throne, merely because he left 
ib« country^ and the illusthous house of 
Hanover wsi at last established, because James 
ha^tailed in the duties he owed to his subjects. 
Again, in Scotland, it was not held that J ames 
had abdicated^ but that he had /MrfeiteJ the 
throne in eonsequence of his proceedings. 
Speculations on the iuliject. indeed, aredeticate, 
and ought not to be mudi indulged in. But 
what was more natural than for M'Laren to 
urge the propriety of petitioning, by stating 
thatithe petition would of course be received, 
and that if the regent did not regard the cries 
of all liis people, he would forfeit their alle- 
giance ? M'Diren did not say it was the duty 
of the Prince Regent to listen, right or wrong, 
to the petition then proposed. In thi» way the 
whole passage is not so unreasonable; and 



where there is anuoeertainCy what. the vuif 
words weN| the moat &v6uiuble interpretatte» 
must be given to them. 

But, in the worst view of the words, they im- 
port merely that in an extreme case, whick 
could not happen, allepp ance vfonid not be due,, 
and such an alternative does not import ie*^ 
dition. If the words were imprudent, diey 
were not seditious. They might indeed hav€: 
been without a vindioation,^ if they haid' becnr 
used at a public meeting where no such woid» 
were warranted bv the occasion, and where thA- 
me^nig was not mr the purpose' of petitioniBg' 
paritament. But consiaer the time when the 
vrords were used. The recommendation of 
ray lord advocate to this effect was cratir 
correct, and I desire you to keep in mind tbaft 
Uiere was a petition at the time under consider 
ration, and that expressions might then be- 
more allowable than at another time. The^ 
sacred right of petitioning is the bulwark of the 
right of free discussion. Discussion may be 
idlowed preparatory to a petition, that would 
npt be endured at any other time. Discussion 
ia necessary on aU such occasions^ Free words- 
may on tb^e occasions be used when speaking 
of ministers, and generaHy of public men, af 
well as of public measures. Are not these 
propositions self-evident? Supposing it were 
asked, whether any of you have a right to write 
a letter to a correspondent, and send it by the- 
post. The answer would be, you have a risbt 
to do so ; there is no law against it But what 
if you have no right to use pen^ ink, and paper ; 
no right to lift the pen, to put it in the mk* 
holder, or apply it to the paper f These acts 
have the same relation to writing a letter, thaft 
the right of canvas8in|^ what are ffrievmicea has 
to the right of petitioning, x ou hkve the 
right of petitioning, which includes the right 
of meeting and canvassing the subject of your 
petition. Thus the right of discussion is pre- 
supposed in the right of petition. 

- As to the lan^age that is legal and warrant- 
able in petitioning and previously discussing 
the mode of petition, it is well known that 
parliament may be approached with language 
as strong as any part of this pamphlet, and cep- 
tainly stronger than any part of the speech oT 
the panel. As evidence of this, take tM votes 
of uie House of Commons, and yow wilt 
iind more violent and bitter expressions of 
grievances, than any in this publication. I 
may read one or two of thes^ petitions, which 
have been appointed by die House to lie en 
the table, and which the House would not 
have thoi^t itself bound to receive, if they 
had considered Uie language as improper in a 
petition to pariiament* I hope Mr* Orent will 
be allowed to read them for me. 

Mr. Gnm/. — This is an extract of a petition 
from Bristol, presented to the House of Com- 
mons on the 29th January U317 [JSeoii from 
the Vote$1. ^ That no man of sincerity will 
affect to believe that such a squandering of the 
resources of the country for such purposes, and 



tMiBf It piM«d in th« negative.** And an* 
other from the inhabitants of Delph was pre* 
sented ; [fvedi] " And a motion oein^ made, 
and the question being pnt, that the said peti« 
tion do lie «poa the taUe, it passed in the 
negatiTe.*^ 

On the 8l8t Januaiy, a petition from the 
town of Usliiaz was presented and read, sett- 
ing forth, [reocb] ** It is now notorious that 
the people of tnis kingdom do experience 
flagrant wrongs and neat misfortunes^ be- 
cause their birthnofat of making their own laws 
has, through the decaY of ancient boroughs, at 
well as through fraud and usurpation, been 
taken from them ; for it is ttniversallY known 
that the^ nation are not represented in the 
House ; in this complication of decay, injustice, 
and wrong, in this rain of the constitution, 
wheieby &e people have been defrauded of 
the seif-preserring power of making, through 
real cepresentatiTes, their own laws, the 
House must see the causes of which all the 
present calamities of our country are the ef- 
fects : here, and here only, the cause of war, 
here the cause of public debt, here the cause 
of an intolerable taxation. — The law, through 
ih^ r^tless power of those who have usurped 
the seats in the House, assumes a severity re- 
volting to humanity, and is carried into exe- 
cution by the bayonet; wherefore the peti- 
tioners feel it to be their duty to protest against 
that corrupt and factious ustirpat^on of seats in 
the House, by which all fr^eaom is destroyed^ 
and our unimppy country is threatened with 
convulsion, slavery, or subjugation ; for in a 
usurpation which inflicts on the whole com- 
munity taxation without representation! nought 
but despotism can be discovered.'' 

" A petition of the there-undersigned inha- 
bitants of the town and neighbourhood of 
Halifox, in Yotkriiire, was also presented and 
read; containing the same allegations and 
praver as the last preceding petition. — And the 
said petitions were orderea to lie upon the 
table?* 

There are many other petitions which I may 
read couched in equally strong language. 



•ft] 

llMJt wtA n deatlveiifepowcr in the managers 
«f paper money, wonhi ever have existed, if 
.^e members of the Hoose of Commons had 
-becD the real repiesentatives of the people, 
instead of beings as they notoriously are, the 
jnete coob of an ever-grasping and tyrannical 
Ollgaidiyof boconghmongers ; that it is in 
'vain to hc^ for any veal remedy, for anjr solid 
and sabstuitial relief except throngh the means 
•of such a reform in the Commons or people's 
House of Pariiament as shall ensure to the 
people Um speaking iof their will throng the 
-menna of representatives, annoaUychosen by 
all men who have attained the age of twenty- 
one years, seeing that all men pay taaae, and 
dmi aU men have fives and liberties to pro- 
eecti Ordeted<hat<he said petition do Ue <on 
ihetaUe." 

Ob the fame day, a petition from the iewn- 
ehip of Qoik:k was presented and read, but it 
appears to have ■contained expiessions which 
were deemed otfensivje, for [reaA from the 
yaia'] ** a motion being made, and the ques- 
tion being put, that the said petition do lie 
vpOB the table, it passed in the negative.** 

On the same dav, the address and petition 
4if the townof (Xdham was presented and read, 
in vrinch are the foUo wing expressions: Ffeodiij 
'^ In the midst of all these calamities, toe lofr- 
uisteiB, m coinunction with an unconstitntional 
and corrupt House of Commons, have pro- 
geeded to vote away a great part of the puoUc 
■MNiey to superfluous and unnecessary pur- 
(poses, die whole of which evils die petitioners 
ascribe to the want of a real, unbiassed, i^, 
lawfril, and annual election of the members of 
die Commcms Hotise of Pariiament^ instead 
4if vrfakfa, the petitioners see, in that House, 

Speets and other boioughmongers, hundreds 
Its seats usurped ; that numbm more of 
thoee sealSy through the gross venality of mo- 
AOpoliang eerporators, are notoriously bought 
and sold, and a laige portion of the members 
of that House, who ought only to sit there as 
repfeeenlatives of die people, are, nevertheless, 
piaoemen and pensioners cC the «rown, and 
veeeivc^ insrianesand emoluments, upwards 
of t0O,000l. a^yearout of the taxes; where- 
fore the petitioners feel it to be thdr duty to 
proceat sigainst diat corrupt and factious usurp- 
jrtioit of seat* in that House, by which freedom 

fiid our once happy countnr 
Lh slavery, starvation, codvuW 
and luia; for, in an usurpation which 
iaidiets on the whole coBsmunity taxation witb- 
ooft repKsentation, nouaht but despotism can 
he dis cov nr ad, nought but rain can proceed. 
Jkad the said peddo9ft were orderea to lie 
wpOB the fable.*^ 

Immediately after ^diich, it appears that 
£rcedi] '^ A petition from Ashton-under-Iine 
was presentea and read, containing the same 
sJlega ti on s and prayer as the petition of the 
inhaliitaafs of the township or Quick, which 
was fbts di^ presented to tne House. And a 
motion being made, and the question being 
XfBtLp thm the laid petition do lie upon. die 



Mr. CMb.— I think enough has been read, 
and we need not latignethe Court and the 
jury, 

Mr. Gr«n^«-Particula»ly on die 12th of 
March I see there are several petitions received 
in the same terms with the petition from 
Halifax. 

Mr. Clerk, — This is but a specimen of the 
petitions which have been sent to, and received 
oy parliament. 'Such axe not, indeed, petitions 
whidi the House of Commons is disposed to 
grant. But the privilege to think and talk on 
diese matters, to take advice about them, to 
hold meetings about them, and to make them 
the subjects of speeches, resolutions, and pe- 
titions, unquestionably belongs to the people 
of tfair country. The right ofpetxtioning is so 
sacred, that Uie most overbearing and arbi- 



871 57 GEORGE Hh 



rr»a 



traiy administrations hava never proposed to 
restrict it altogether. You will pause, then, 
before jou prooooooe a verdict, which, as the 
public prosecutor demands it» wottkl» in terms 
almost direct, be a verdict against the right of 
petitioning: for the same argument that has 
been urged against the panel would apply 
against speeches relative to petitions* conj^ 
plaining of any other public abuses, if the 
distresses of the people should be never so 
great — abuses against which ne i^nnedy conld 
be looked for but by petitioning the legislature, 
and stating the grievances in the language of 
to>utfa. Were such a pestilence i0 be intro- 
duced in ^is part of the island, as prosecu- 
tions to subvert the right of petitioning, the 
consequences would indeed be calamitous. 
The right of petitioning, so tenaciously held 
by our ancestors, may l^ still more necessary 
to our posterity. The present case ought not 
to have been prosecuted, even if the words 
had been more inflammatory than they are. 
It has no resemblance to a case of sedition. 
In the case of Muir,* and a variety of .others, 
in which men were tried and punisHed for 
sedition, a wicked purpose was always clearly 
established, and the accused had no pretence 
for saying that they looked toward the legis- 
lature for the accomplishment of their objects. 
The ipoment that such a bona fik purpose is 
in view, the eubject has a right to express his 
opinion, and he cannot be subjected to punish- 
ment for it. If he could be punished, the 
right of petition would be at an end. 

Gentlemen, the panel is a person of irre- 
proachable character, and his former history, 
and in particular the loyalty and public spirit 
of his conduct on all occasions, leave no room 
for any presumption that he would be inclined 
to seditious practices. 

£Mr. Clerk then read the following jcertir 

ficates :] 

Kilmarnock, 2nd April, 1S17, 
This is to certify, that Alexander 
McLaren has resided in my house as a 
lodger for the space of seven years against 
May next, behaving himself soberly and 
honestly, free from wrangling or quarrel- 
ling, and as a loyal subject, speaking 
respectfully of government, and all other 
rulers in their different stations, so far a^ 
is known to me. 

John Stratrern, wright. 

EHmamock, 2nd AprU^ 1817. 
.This is to certify, that Mr. Alexander 
McLaren has resided in Kilmarnock for 
upwards of eiffht ^ears, and has been se- 
, veral years in habits of intimacy with the 
undersigners ; and during that time, to 
the utmost of our knowledge, has behaved 
in a sober and peaceable manner ; at all 
tiroes has been a loyal subject, a finp 



2 How. Mod. St. Tr. ^17. 



fneod of order, and a habitiAl respecter 
of authority. 

JoBH Stratheiih, wiight. 

James Al£xa3«j)Er, 9tn, weaver. 

John Buntin, weaver. 

Wm. Howie, builder. 

Geo. Smith, grocer. 

John Paxton, brewer. 

James Craig, weaver. 

James Buntin, shoemaker. 



Mr. Jeffre^j^^YovL are aware, gentlemen, 
that it is now my duty to address you on the 
part of the other panel ; and, after what yoit 
nave already heard, and Ihe ample opportunity 
you have had to consider the whole of the evi* 
dence during the trial, I flatter myself I shall 
be able to discharge this duty without en* 
croaching much longer on your time. I wish, 
first, to address a word or two to you on the 
facts of the case, and to lay before you, in 
a detached form, those that relate to this 
panel, Thomas Baird— >after which I must 
trouble you with a few words on what I ood- 
ceive to be their reasonable and legal import. 

It is one comfort in this case, surrounded as 
it is with discomforts and anxieties, that with 
regard to the facts, there can be no reasonable 
doubt in your minds ; nor am I aware, indeed, 
that upon this part of the subject there is any 
great contradiction between the opposite sides 
of the bar. And, therefore, I shall give but a 
slight abridgement of the facts, separating 
those which apply to this individual, tJie truth 
and import ot which I do not conceive liable 
to any question. 

You will remember, it has been put in evi- 
dence before you, that he is a man in a good 
condition in life, which is denoteitl, indeed, by 
his appearance. He is in reality a most re- 
spectable person, who had long resided in the 
town, among whose citizens he had taken an 
active part on this occasion ; and, even in the 
judgment of those who differed from him in 
opinion on political subjects, and who, from 
their official situation, had the power and the 
duty to prevent him from committing any 
wrong, he was universally esteemed incapable 
of harbouring evil intentions against the con- 
stitution. He was entrusted with military and 
civil offices, which are only committed to 
known and tried hands. He is past the early 
period of youth, when great imprudence may 
take^ptace, notwithstanding pnncinles gene- 
rally correct. He has a young ramily de- 
pendent on him for their subsistence; and 
earns his livelihood by a trade which depends 
for its success on his good character and 
conduct. It has been proved that his general 
conduct is not only correct but exemplary, and 
that he has been in the habit of communicating 
and discussing his opinions on politics with a 
variety of persons who did not concur in thjose 
opinions ; and therefore, while the other panel, 
from being less known in the town, could not 
have his character so generally* spoken to, we 
wbo have been entniued with the defence of 



amtilthamai 



hr SetBtmn. 



Buid, and >Ih> betAg 1«m dreamscrib^d in 
^is rasped, eoold affrad toiMke a Mlection 
ioi oar witees9^ have prnpoaely abstained 
from taking ibe eridence of these who con* 
.ciured ih his poMtical sentiments, or bringing 
one Teformer to testify in larour of another, 
and have tboaght it better to take the evidence 
of those only who were naturally influenced 
hy opposite motives and principles. 

You heard from them that mis person has 
always been remarkable for the frankness with 
wfaidb he ddivered his opinions; and that, 
even when expressing them with the beat and 
exaggeration inseparable from such discussions 
among parties who do not agree, they always 
appeared to them perfectly innocent and fair. 
wowne, Wyllie, and Miller, from profession 
and sitoadon the roost figuring men in the 
town, and the most notoriously adverse to any- 
change in 4he established order of things, aU 
say he «miformly maintained such language as 
impressed their minds with a conviction Uiat 
he was strongly and decidedly attached to the 
constitntion of this empire, though he wished 
for a reform in the Commons House of Pariia- 
aent : that he was a mild person, aud of a 
cbancter incapable of exciting, in any way, 
any degree of disorder or discontent against 
government. 

f am aware, that a good moral character is 
not in general an answer to a charge of crime, 
if there is distinct proof of its having been 
committed on any particular occasion ; and 
that an allegation by the prosecutor of a wrong 
committed by a person whose moral character 
previously stood untainted, will, if supported 
Dy positive evidence, lead to the punishment 
of tnal person, notwithstanding such previous 
good character. But I submit to ^oa, that in 
a trial Uke this, depending mainly on thie 
question, whether the panel harboured a 
mdced, ielonious, and seditious purpose, — 
or, if he did not harbour such purpose in its 
obvious aod naked form, whether he was 
chargeable with that disregard of the safety of 
his neighbour, or thalt recklessness as to con- 
sequences, which, in the eye of law, is const* 
dered a moral wrong, and punished as wicked 
and felonious : — ^I say, in a case in which every 
thing depends on this ; where the matter is in* 
tfinsically of a doubtful nature ; where it is a 
qoesticm whether a person has gone beyond a 
IMidooaUe vivacity of discussion, and ven- 
tuied to use language which the law holdsto 
be demonstrative evidence of Improper pur- 
.pose — if, in these drcmnstances, you. find a 
standing iq Snch a situation as the panel 
teaiftMr«ttii*ea]^0»;himself to public 
gifted -with powe^of eloquence- 
no way accoslomed or inditted to try his 
tsieals in that way — carrying on a thriving 
trade, which he has no disposition to leave — 
and standing comparatively uniojured, while 
etbers around him were on the verge of ruin 
—<>f peaceable habits^— of moderate'pohtical ^ 
pfinciples — under such citcamstances, I say, 
foa are booad to pr^fmne for his iimoceDce; 



A. D. 1817* 



ro6 



unless eitmiAat intention be dfariy and un* 
answerably established against him. The legal 
presumption of innocence,* in such a ease, 
amounts almost to a moral certainty. 

In this situation, Mr. Bahrd, placed as he 
was hi the heart of a manuihcturing district, 
could not hA to be a spectator of rery general* 
and very deplorable misery. A shuer in it he 
must also have been in some degree, as all 
persons must be who* are connected with the 
sale of commodities from which purchasers are 
gradually withdrawing. Although the causes 
of the general distress did nQ>t so immediately 
or directly affect him, yet he heard and wit* 
nessed those clamours and complaints, which- 
certainly, in this part of the island, have not 
hitherto broken out into those rather compas- 
sionable than criminal excesses, to which- the 
infirmity of human nature, rather than the ma- 
lignity of individuals, or of any class of the 
people, mav be hurried in seasons of such un* 
precedented calamity. He could not help 
hearing those complaints, and listening to the 
remedies which were proposed for those evils ; 
and it appears, that he concurred in the opi- 
nion which some persons have held ^ and he 
confessed it to all with whom he had occasion 
to converse-*- that a great part of the evils arose 
from a defect in one of the great bodies of the 
legislature — from want of due communion of 
sentiment between the bod^ of the people, and 
those whose fonction it is to express theilr 
sentiments, and watch over their interests. 
That he entertained such an opiniou, there is 
no doubt. Not going so iar, perhaps, as think* 
ing that a ueform in the representation of the 
people would remove the evils then existing, 
ne, in common with many persons, was of 
opinion, that it mivht tend at least to prevent 
their recurrence. He certainly did favour the 
professed object of the meetinfr, and in this, 
if his guilt began, it also ended. He undis- 
guisedly gave his countenance to a general 
meeting for petitioning the thr^e branches of 
the legislature, for redress of grievances, and 
reform of the Commons House of Parliament. 
His conduct in this particular was worthy of 
the sincerity with which it was dictated* As- 
sociated with some' others whom you have 
seen, they agreed as to the propriety or ex* 
pediency of encouraging this method of pro- 
ceeding; and at the same time, they .deter- 
mined not to take this step of calling a meeting 
for petitioning the legislature, if it was op* 
posed, or likeV to produce any opposition, m 
an official form, on the part of the local ma^ 
gistrates. Accordingly mt, Baird, as one of 
Uie most respectable of the committee (all of 
whom seem to have been cool persons enough 
when the heat of the action was over, and the 
field deserted), waited on the provost; and 
the provost told you, that though be disap- 
proved of the meeting, he did not think ne 
nad power to prevent it, • He seems . actually 
to have gone out.of town when it- took place : 
so far 'was he' from* thinking thefe ^was any 
daDger to be appfthndad : and he wu ' 



ni 



iff QfiOROB. III. 



JVM ^Aktmder tttatfrn 



CM 



ied in bit opfailoD from tht mall— <lifft wm | 
no tendency tx> tumult or disonler. | 

At that meetiogi Mr. Bmidy no doubt^ «t- 
ilended. He wu ttiere wid heard the apexes 
ihat Jirere delivered ; some of wbidi, ondoabt- 
edlj, ^icontain Tery indecorous and improper 
'Cqpfettibns — expressions which it may have 
been prepoetctous to utter at a meeting con- 
vened for lawfol and oonstitutional purposes. 
But if persons go to such a meeting at al^ they 
may expect that prepoelerous expressions will 
1)0 used, on both sides, peibafMy of the qnes- 
tion. But is a man to ne punikied for sedi- 
tion, if he accidentally hear seditious laoguage 
mnt^oyed by aoodier person? Not on^ wet 
the measure of ealliog a meeting for petitioning 
perfectW lawful in itself, but &e bamnour of 
those who attended seems to haTO been ordeily, 
decent and exemplary* I do not know whether 
Tonr views concur with those of Mr. Baird, 
but thinking as he did on the subject, he acted 
properly. It is to be taken for granted, 
that Ae petitioners were sincere in their opi* 
■km, and that in taking those measures, tney 
thought thev would be of great eflRsct in pro* 
ducing good* 

At that meeting, then, Mr. Baird did not 
epeak. He heard the speeches in question^ — 
Mt as that could not, or course, taint him with 
guilt, I am sure you will go along wiUi me in 
thinking, that up to this point there was im- 
thing culpable in his conduct; and therefore 
the veiy beginning and ending of the crimi- 
nality imputed to him consists in his having 
nllefwaids (I cannot say, concurred, but) sub- 
mitted to a resolution forced on.himbythe 
m^rity of those persons, with whom he was 
associated, in an application to parlmment, for 
having these orations printed, in a foil, true 
and particulat acoaunt of the whole proceed- 
ings. This we stated in the outset ; and it 
hat been proved, without contradiction, by 
the testimony of a variety of witnesses. In 
the examination of the several witnesses, no 
indtcation ever appeared,-«no hint, even in 
the moat distant manner, ever presented it-' 
fel(— 4hat the publication of the speeches was 
made inith a view that seditious doctrines 
dmnld be piopatated, or that the contents of 
the work should be studied by persons at a 
distance. Hie puUication is dearly proved 
not to have had any such ambitious object; 
but to have been made in the humble view of 
lecaiing a little paltry gain,— to defray tim 
expense of nailing up a fow boards for the ao- 
coasmodation 6f the oraton, and providing a 
ftw sheets of gilt paper for thsee or four peti- 
tions to be tnnsmitled to the Prince Regent 
mid the Houses of Pariiameat. 

It occurred to the petitioners, that the only 
means for defraying mis heavy expense was to 
print an aooonnt of their piocoedings^— that 
anums tiieir neighbours, whether those who 
agreed mth them» or weto opposed to them 
in iwlitkal oninions, tbcy might sell as many 
eopies as te^ht raisie the sum which 



is not the leeit veetige of aoydmbn m havn 
the woik read or admired, either for mischief 
or glory; The only object was to get a small 
number sold; and aeoordrngly diey seem all 
to have been sold — without so mndi as a 
single copy having been given awuv. Mr. 



Baird, into whose hands, as on^ 
mittee of the petitioners^ a number of the 
copies were impressed, got rid of them, it is 
true, vqth more fodlity than another man who 
was examined to-day did of Jiis copies. But 
this was merely becnnse he keeps a weU-fro- 
quented shop, not because he was in any way 
aealoos for their circulation. The natum of 
Mr. Baird's trust and management in the 
burfnem were proved to vou by his own shop- 
man, and his own dedamtion; and it has 
been proved, that if he got rid of every oim 
copy he vras possessed of, shopmanlike 1m 
exacted his groat for every one ot them urhidt 
he sold. Tbe printer said that about 400 
copies were printed. Some remained in the 
haiids of members of the committee who did 
not get them sold. They were not sold te 
booksdlen ; becanse the petitionen could not 
eflbrd to pay booksdlcrs' commission: thev 
were sdd for a paiticnlar purpose, which £ 
have specified, and were soul in the cheapest 
way. Some of them were sold in a grocer's 
sh<^ where they mixht be ofuse to wrap up 
goods that were purmsed; other members of 
me committee, however, could not sell their 
eopies, because they could not, perhaps, be of 
sudi immediate use to the purchasers. 

You see the nature of this transaction, then^ 
and you must now be aware that it is con- 
formable U> the statement which was given of 
it at the beginning. Mr. Baird took no step 
disconformable to his general dmracter of n 
quiet, modest, honest, wel)-disposed, good 
man ; he made no speedies, but disapproved 
of various speeches and passages in speedma 
(which foot has been folly made out), as hamh 
and offensive; and these are considerations 
which certainly are of importance in determtn* 
ing whether he n guilty or not of sedition, an 
diarged against htm in this indictment. 

These are the whole of the foctsof this case ; 
and you will be pleased to add to these focta 
what is proved to you by the evidence, and 
which the dates and the documents themselves 
instruct, vix. Uiatall this took place publidy. 
It was known to his majestv's advocate, and 
all the lieges, that this was done so long beck 
as December 1816; and yon have seen that 
400 eopies of the publication were all that 
wevepnnted. I do not think yon will imagint 
it is very Ifkdy the anthon and printem es» 
peeled a gtfeat sale. None of the authom were 
mndi known inthe literaiy woiid, and none of 
them, I think, profossed themeelves to be 
poUttdans. The object was to sell copies to 
the eniiotts cdnntiy gendemen and the goasipa 
m the n e ig h bour h ood. It was reasonable to 
think, too^ that some peofite mig^ have tlua 
eariQSity» who were prevented by the weather 
frMB gm^^mtt it, bTtttmidiag at thn meeting ; 



09l mwf THaiiifi fiwrrfjTir VMmw 

far ywfi i*i> KwMMt, thai iIm ipeedm i*tM 



A. D. 1817. 



IM 



•pocMi IB dtfiafioe of tiM angxy biwtf of 
iMTODy — ifi tiM nidtt of hafl, mow, and wind^ 
•ad potwitiwtaiiding tho coporitioa of the 
•lomeBlt. PodtwDS ia oenumiiity with tbese 
gp oec hOT <pero cng i o w o d ; tad it it nol demod, 
iior can there be wf doebt of the feet, thai 
liwjr were oieaentedp and tliat thej were re- 
ceived Willi the oaoal cinlities with which 
p e w o ns in thoee hig^ qmirleia are woat'to 
leeetve aoch coimmmifeatioM, 

All thie was dene montht ago, and ^ a time 
when DO atarm aboot seditioa obtained here 
or in aaiy oUier quarter of the kingdom; and 
Mr. Beird was-attowed lo idl his commodity 
el pamphletay and to convene with his neiph- 
boiua aboQt them^ without an j bod^ hmting 
Ihathewaiin any danger, not fitom'Whathe 
was doiaff, bat from wluift he had done weeks 
before. Bot, after that, some odiootf proceed- 
ings took place in another quarter of the 
ishiad. Certain mobs had eicited consider- 
aMe alarm in the mind of the Lq^islatiire, and 
of the inhabitants of the metropolis^ where a 
larn asMmbkq^e of people is easily convened) 
and distnrbance easily excited. They did 
comnit some little ontrage, and occasioned 
aome fear for the peace of the dty,* This 
Hear was propasated to the extremities of the 
empirey'-4nd then the Ttgilance of the Pnblic 
Fh»ecntor in tlds country goes back to a for- 
BKT meeting, in a remote quarter, which had 
not been attended with any tumult, and had 
not been followed up wifh any the slightest 
criminal consequences. A book, consisting 
of foolish, ridicnkras specimens of rustic ora* 
torr is on this occasion brought forward,-— 
and this quiet, esteemed and trust-worthy 
man is brought to your bar, and arraigned for 
having wittedly and fdonioosly circulated 



We come now to consider what is the in^ 
port of the foets in this case, and what is the 
▼erdict you ought this night to pronounce on 
the peison, wImso character through life, and 
whose conduct upon one occasion, have been 
detailed to yon in evidence to-day: The 
ouestion is^ Whether the eridence to which I 
have referred is such as to compel you, con- 
trary to that general presnmption of innocence 
ifl^di law establishes for every aoeosed per- 
aoB,*-coatnry to that special presumption of 
Jljnnrnncfl wluch the wbole tenor of the de- 
llmdaBt's lifo and Aoaduet morallT esUblishes 
in his favoor,— wheihvr that evidenee, I say, 
be each as to constrain yon to pronounce theft 
kis eaadact upon this occafion originated in 
amligaaal aad diabolical parposes^-— purposes, 
foom the snoosis of vrido he had Orety thing 
to lose and nothing to gain, but was to be 
ttorsly an inglorioos stirrer up of sedition in 
the fim instance, and a victim to its guilt and 
iosaaify in the second. — ^The question I say is. 
Whether the evidence goes to shew that such 
Is Ihe chaiacter of his. o£fence,— that such foUy 



"vw- 



flee James WatsonVCeM, VoL xzxii.p. 1« 



oMst be imputed to a men of sense and 
racter, and that vou cannot help- saying, on 
your oaths, that ne disregardea all conse- 
quences to others, to his country, and to him- 
self and was detehnined to stir up seditioa 
and distaibance. 

The essence of this, and of all other Cffimee, 
consists in the moral defect by which they are 
engendered; and therefore it is, that eveiy 
criminal indictmeot necessarily charges, that 
the offence for which it threatens the iccosed 
person with punishment was committed wtclh 

acnd/emioiii/j^ ; and I believe almost every 
ctment for crimes of this description con- 
tains in more express words than occur here, 
an allegation that the acts set foitii and de- 
scribed were done wdA en mlotfioa to excite 
sedition and disturbance. It is the intention,, 
in short, in which the crime legally and 
morally consists. I do not find foult with the 
omission of that in the indictment. I rely oi» 
the candour, propriety, and vrisdom of the 
Bendi, to give you the requisite information 
on the subject : and I am sure yo^ wiU be told 
that the words indispensably inserted ^in tliia 
indictment are in their own statement equiva- 
lent to a direct allegation of intention in the 
commission of the crime charged; aad that a 
more particulsr charge of intention oould nol 
have served any purpose. 

When I sav this is a necessary piH of this^ 
and of all other charges of sedition, yon win 
ffive me so much ciedit as to suppoee that I 
do not mean to assert that the Fuolic Prose- 
cutor is bound to bring direct and positive 
proof of a criminal intention having bee» 
actually expressed, or that it is not compe^ 
tent for him to aigne that the nature of the- 
acts themselves, — the circumstances in whick 
thqr were committed, — the situation of the- 
party, — ^the temptations to which he was ex- 
posed,^-ids whole conduct before and after tibe- 
time he con^mitted the acts, — the general and 
well-known complexion of the times when the* 
acts were done, are to be taken into consider* 
ation, in forming a judgment as to the inten* 
tion with which the acts were performed.-— ^ 
Sttdi considerations csnnotbntarord evidence 
of the purpose and intention \ and in ^ues* 
tions with regard to almost dl other onmes^ 
^is inference is generally so plain and neces*- 
sarjr M to make the task of the Jury compa* 
rativdy easy. If a man aim a blow at another; 
and knock out his brains, — if a person break 
in at night and rob a house, or if he for^e a 
bill, and draw money for it from a bank, it is 
vain ta say there is a necessity to bring evi* 
dence beyond the feet itself, to prove a malign 
nant purpose in the one case, or a purpose of 
fraud in the other. But observe me charao* 
ter of sedition as defined, or attempted to be 
defined, by my learned iiiend, and, indeed, bv 
all the lawyers. I am not finding fault with 
my Lord Advocate for not properiy defining 
sedition, because it is one of uie disadvimtag^ 
attending such a case, that a suificient ana 
satisfactoiy definition is not to be easily found) 



751 



S7 GEORGB IIL 



Trial ^Mtumbr M*lMm 



tTtt- 



meattest of the peoples ^mn aooient times. 
Since the Revohitioa it has oever beeo qaesti- 
oned; and immedialely before that glorious 
event, it was attacked only to enable a tyran- 
uoal gOTenunent to sabvert the public liberty. 
But t£e attack was repelled even in the worst 
of times ; and the first act of die go?emment 
of King William and Queen Mary was to 
eonfirm the right of petitioning, as a franduse 
of which the people could not be deprived. 
It has ever ^mce been considered as a right 
unalterably fixed by the fundamental laws of 
the state ; and^ accordingly, though the exer- 
cise of it is suf^sed to be sometimes unplear 
aaat to the government, yet no administration, 
and neither House of Parliament, has hitherto 
thought proper even to disoourage the people 
in the exercise of their right of petitioning. 
How many hundreds, or rather thousands, of 
petitions have been presented to the different 
branches of the kgislatnie within these few 
years, representing as grievances thinn which 
are not acknowled^ to be such 1 and yet ihe 
petitions, as coming from the people in the 
exercise of their right, have been graciously 
received by tliose to whom they were address- 
ed. And so important is the right of petition- 
ing, that every other right in the people has 
been« supposed to depend upon it, inasmuch 
as the people, if deprived of that right, would 
be in aanger of losing the protecticm necessary 
to defend them in their other rights. 

It is obvious that a fair communication from 
the people of their grievances and discontents 
to the legislature, which has the power, and 
whose duty it is to protect them, cannot be 
•edition, if they have a right to make such 
communication . If the people should petition 
parliament without hanng the riffht oy law 
to do so^ these petitions might be, and in 
almost every case would be seditious and 
dangerous, in raising or increasing discontents 
and disturbances ; because every complaint of 
a public grievance has a tendency to create a 
public discontent, and this is illegal and se- 
ditious in every case where the law does not 
allow it. For the same reason, any violent 
complaint of public grievances may be sediti- 
ous or illegal, where it is not addressed to 
persons having legal authority to take it into 
consideration and give relief. But it would 
be a solecism to say, that a petition to the 
King or to either House of Parliament, stating 
grievances, and praying for redress is sediti- 
ous, because, Ist, it is allowed by law ; 2dly, 
the persons addressed have an authority to 
lake the complaint into consideration and give 
•relief. Petitioning is indeed considered as a 
means of removing discontents and preventing 
disturbances, not as a means of raising them ; 
and this may be true i^ some cases, though it 
is not always so, and we have frequently seen 
a forment of discontent much increased by 
numerous meetings of the people, called for 
the purpose of petitioning. But stiU the legal 
'right of petitioniog is unauestionable ; and it 
must be. supposed that this right, though it 



cannot be used without expressing discontent, 
and thereby communicating it among the peo». 
pie, and possibly raising it, where it had pre- 
viously no existence, may be legally (and 
without any crime, or the fear of criminal pro- 
secutions^ used in every case whatever, evea 
though tne use of it diould in some respects 
have a bad tendency ; the utility, and even n^ 
cessity of presentins the right, counterbalance 
ing the nuschiefr which may be occasioned by 
the seditious or discontented spirit which may 
he raised by it. 

But it must be plain, that if the people have 
a right to state the grievances in petitions Cor 
redress of grievances to the different branches 
of the legislature, it follows as a necessary 
consequence that they have a right to state 
these ^evances in the plainest language, and 
even m what is commonly considered to be 
strong or coarse language in the descriptioa 
of public abuses, if they do not in their peti- 
tions violate that respect that is due to the 
legislature: under that restriction, they may 
assert in their petitions that there are the 
grossest abuses, even in the legislature itself. 
And you need not be told, that even petitions 
of that kind are occasionally sent from all 
quarters of the country, when discontents pre-> 
vail among the people. A stranger to the 
peculiarities of tne British Government might 
think it odd that petitions of this class, con- 
taining inferences of a nature apparently so 
irreverent, not only indicating an extreme 
degree of discontent in the petitioners, but ■ 
directly tending to raise and aisseminate the 
same kind of discontent through the whole of 
the kingdom, should be tolerated, especially 
where it b plainly the opinion, not only of the 
different branches of the legislature, but also 
the opinion of the more sensible part of the 
community, that the petitions are very ill- 
founded in their representations of grieyances, 
and demand, by way of redress, new public 
measures or arrangements, which would not 
only be useless, but dangerous and even cala- 
mitous. Such considerations, however, have 
no influence, or very little influenoe, in the 
question, whether the people have the right to 
present their petitions, and whether, when 
offered, the petitions ought to be received. 
On the contrary, it has long been held by the 
legislature, that, as the people have the right 
to petition for redress of grievances, so they 
have the right to state what they consider to 
be their grievances, whether they are really 
ffrievances that ought to be redressed or not. 
The general rule is, that however unreasonable, 
or unfit to be granted the prayers of the peo- 
ple in their petitions may be, it is not unfit to 
receive the petitions, and the people have a 
right to present them, a right that is unalie- 
nable. 

But fiirther, if the right of petitioning be- 
longs to the people, the^ must of necessity 
have the right of deliberatioa upon the subject 
of their petitions, to consult with each other 
at public meetings,, to be adjrised by thofe 



m 



and Tkonuu Bairdjor BedUion, 



A. D. 1817. 



C78 



who are able to advise them, or think them- 
sehres able, upon the Tarious points which may 
occur in coosuleiing what are griemncef , and 
what are doc ; end if there are grieyances^ what 
are the remedi^ that oaght to be proposed or 
prayed for in their petitions. With regard to 
the important claims which may be made in 
petitions to the legislatnret. every man neces- 
sarily most have a right to meet with his 
/eiiows, either in small or in great numbers, 
and to discuss the matter with them. One 
man may think that annual parliaments lare 
Aeccssaiy ; another that they would be hurt- 
fbi or impracticable. On this trial, it is not 
necessary for us to consider whe^er annual 
psoiisuttents and universal suffirage are eood or 
CMkd ; and, on this occasion, I have nothing to 
do with these questions. But I say that it is 
DOt nnlafrful to petition for either. And ge* 
neraOy, vHiatever the grievance, or fancied 
grievance is, it may lawfully be the subject of 
a petition to the legislature ; and for tlue same 
-season it may lawfully be the subject of deli- 
becalioB and discussion, even in public meet- 
ings held for the purpose of petitioning. 
You will observe, that there can be no limits 
to this right of petitioning, and previously de- 
bbeniting; lor when it is limited the right is 
gone. The right is to present unreasonable 
as well as reasonable petitions. Or if un- 
resoonable petitioningwere unlawful, the legis- 
lature alone is the judge of what is reasoniu>le 
or unreasonable in ^titions. If the right of 
petitioning could be restrained by the courts 
of law, there would be an end of the right of 
petitioning, — a fundamental law of tliis mo- 
■aicfay, — a law, the palladium of our other 



On lihe occasion of which we have heard so . 
Bwdi, when the people in and about Kilmar- 
nock met to consider whether thev should send 
addresses to the legislature on the subject of 
their grievances, various speeches were made, 
and we are told by the prosecutor, that these 
speeches, and in particular the speech of 
Mliereo, were seditious. In reganl to the 
^piestion, whether or not his speech was sedi- 
tMNM, he pleads that the right 6i petitioning 
neeeasarily implies the right of previous dis- 
cswsion. If this be true, apply it to the* case 
before you. At such a meeting a speech may 
possibly be seditious, where it appears either 
that the meetins was called, not for its pro- 
fessed object of petitioning Parliament, but 
nerely to afford opportunities to make sediti- 
ons speeches; — or that thoug^- the meeting 
hm^fidt assembled for petitioning, the speech 
went beyond its proper bounds, and was se- 
ditious in statements not justified by the oc- 
casion. As to the first of these cases, there is 
not even a pretence for denying that the meet- 
ing in qoestion was hcrna fiie called for the 
rirpose of framing petitions to Parliament, 
refer to all the evidence which vou have 
heard. It was a meeting collected for that 
purpose, and for no other, nor was any further 
purpose in view. 



The argmnent of the public prosecutor, aoid 
the evidence adduced, will apply only to the 
second case supposed, that the speakers at a 
meeting hcma jidt assembled for petitioning, 
had gone beyond their bounds, and deviated 
into sedition. But has this been made out 
against Mr. McLaren T His short speech, though 
coarse, was suitable to the occasion, as an ex- 
hortation to petitioning, and nothing else. 

We were told, indeed, diat this case is simi- 
lar to that of Pyshe Palmer, who many years 
ago, was tried ror sedition, found guilty, and 
sentenced to transportation. But Ihis is a 
total mistake. The case before you is very 
different from that of F^sbe Palmer, and firom 
all the other cases which have hitherto been 
tried before the Court of Justiciary. It has 
been reserved 4br the present Lord Advocate 
to bring 3uch a case as the present to trial, in 
which, if the verdict find the panels guilty of 
sedition, the right of petitioning, hitherto un- 
challenged, seems to be attacked almost in di- 
rect terms. The case of Fyshe Palmer was 
that of a seditious libel, an inflammatory 
hand-bill, containing seditious language, witb-> 
out any proposal to petition Parliament. We 
were told that this case of Fyshe Palmer 
was defended on the same grounds that were 
stated in defence at the beginning of this trial ; 
yet the lord advocate declined to meet that 
defence particularly, and bear it down ^ the 
triumphant authority of Palmer's case There 
was no resemblance between that case and 
the present. Fyshe Palmer recommended an 
appeal, on the subject of grievances, not to the 
legislature, but to a mob, the scum of the earth 
in the neighbourhood of Dundee,-— to the so* 
verign authority of the multitude. -The de» 
fence in that case was disregarded, — ^but what 
was it ? It was said, that in this free govern- 
ment it is necessary that the press should be 
free. It was said that the people must hate 
freedom to attack public men, and must be en- 
titled to publish, not treason, not sedition, in 
a palpable form, but their thoughts in a free 
and independent manner. It was added, thai 
Mr. Fyshe Palmer was. not very sound in his 
mind. These were the defences for him. 
You wiUperhaps be surprised when I tell you, 
that mv Lord Abercromby, who tried the case, 
held, in his speech to the Jury, that if a peti- 
tion to Parliament had been in view, the libel 
of which Fyshe Palmer was found guil^ would 
not have been of so aggravated a description, 
—would jaerhaps not have been considered a 
libel atalL ^flluch flie remarked) has been 
said of the purity of tne i 



intentions of the 
cietv ; it is 'said they had nothing in view but 
moderate reform, fiut, Gentlemen, you .will 
consider how far that is consistent, either witii 
the tenor of the address itself, or with what is 
sworn to by Mealmaker, who drew the first 
draught of it, and who swears exprsssl^^y that 
at that time he had no second petition in 
his contemplation'' and that what was after- 
wards to be done would have depended 
upon drcumstanees. I much fear that here 



791 



57 GEOaCB HI. 



Tritd qfAkfonier M'Laim 



[se 



HCMliMker it kO&ug tht fanitliy aad tktt if 
tb^ bad not been attended to» tbe conduct 
of thit societjr wonld not bnve proved so pure 
ai their iatentioDs are said to Ikare been/' * lo 
l^t caiey xou will otenwy that a seditioiis li- 
bel wna diaperfeed over Uie coontrr witbout 
aAjt consequence being cOnteaiplafted bnt that 
of inflamMig the nindt of die Multitude. On 
the other hand, we have been at pains to shew, 
that the pa«e]a in this eaae were quiet oiderly 
peraoofy not eoncemed with any aeditioua so^ 
gieliea ; not connected with any poUttcal parties^ 
only fading dlstresi^ thinking they had gfier* 
aaces to ooaaplain of, aad that they conra betp 
ter their sitnations by petitioning parliament. 
The^ BMt together in the aMat ovdnrly man- 
neiv-^delibemted as it is naual to do in public 
taaetings^—prepared rasokidoniiy— 'prepared a 
petition,— 4M signed it, — aad that ^tition, 
llongh condied in strong tecmsy was presented 
to the Honaes of Patiianient, oonsideredy re* 
eeivedy and laid on their tables. Is the right 
^petitieniagythen, to be interrupted in thta 
eatraordina mnanner^ by bringing the pet»* 
tinners into the Conrt of Justiciary^ 

RecoUet that this was a neeting ibr consideiw 
ing the propriety of petitioning the legislatare^ 
and that the aMeting wonM have been aHo^* 
gather nugateiy unleas the persons then met 
had been allowed to state their opiaions t« one 
another In the first page of this indictaMnt, 
the panel is ohttigad with hairing wickedly and 
letooionsly delivered '< a speech eootaimog a 
number of seditiens and inflanmatory remarks 
WHi assertions^ eaknlated to degrade and bring 
im» Goatanpt the Oovemment and legislatnre^ 
and to withdrew therefrom die oonlklence and 
aihctiotts of the people, and to fiU the raidm 
wilh treuble and diesesitien." Gentleaaen, 
wherever (he peopk are exposed to griavanees 
they necessarily must, when they meet to eeik- 
aider the means of redrem, espiem their sense 
of these grietances ; and I ask wliether it be 
possible to stato pnUic grievances, especieUy 
grievances arising from sndk a sonroe as over* 
taxation^ without in soaae way or other reflect- 
ing on the Government. In the esereise of 
onr right of petilioning against grievances^ 
these grievances mnst be aikentioned ( and k 
isiBH>omihie to mention tfaem^ or even to 
allude to them, witbont briaginff the Ooven^ 
SMUt into discredit. For ttamirte, let a peti^ 
lien he presented against ovcr«taiatien» irhafe- 
ever were the causes of the evtt^-^^wan jnst 
ern^jusV— voavoidafale miefortonea^ or mis- 
eanduetin pnMic afiairs^-^ is hiwinl to stato 
the grievwiee. Bnt can it be elated withont 
afffdiag more or leas, or attempting to afleet 
An pnMtc opinaen as ta the merits or demerits 
«f adminiBtmlseii? Eveiy pnbKe statement 
respetling puUie eAus has that tendency. 
Bat are the people to be intemptod en sneh 

r rends, in the ezedtcise of their just rights. 
i:* of the essence of their ri^t to complain 
^^■ ^ • ■ ' ■ I I I I II — 

* Fyshn Pahner'8 case % How. Mod. St« 
Tr. 371. 



of grievgncas, and therefore I apprehend yon 
must disregard entirely those general expres- 
sions in the indiclmentt charging M'Laren'a 
speech as tending to bring the Government 
into contempt. The petitioners felt griev- 
ances ; — tbey prepared petitions, and it is im- 
possible to state a public grievance without 
throwing blame upon the Government. I do 
not mean to examine the question, whether 
there really was any blame attachable ta 
Government ; for it is the same thing in thin 
case whetherthe petitioners were right or wrong 
in their statement. My defence is, that they 
were in the fair prosecution of legal view8« 
Suppose no words to have been uttered bnl 
what would, in other circumstances, have beesi 
considered seditious, their having had a right 
object in view is a good defence. But ^^^ 
sort of obloquy has been thrown on the petiti^ 
oners, without any notice of the lawful object 
thev bad in view, as if their oliject were to bw 
laia entirely out of consideration. 

The legality of the object, and the sitnatioia 
in which the speeches were uttered, are the 
most important eireumstances of the case. 
Every thuig else is of a trivial and snbordinatn 
nature. But let us see what the panel is 
alleged to have sai4« No positive evidenon 
has been adduced to prove any part of bin 
speech, eacept a few words at the end of tbe 
passage quoted in the indictment, and, so fiir 
as I have observed, you have only the unoer* 
tain evidence of one person to there worda« 
I shidl remark upon the words in the indict* 
ment. 

" That our sufferings are insupDorteble, in 
demonstreted to the world." I ao not sajr 
whether their sufferings were insupportable or 
not ; but they appear to have been sevefre^ and 
the people were met ibr the purpose of con* 
sidering them, and to join in petitioning fiat 
relief. Here I presume is no sedition. 

'* And that they are neither temporary, wsr 
eccasihned by transition ftom war to peace, ia 
palpable to all, though all have not the courage 
to avow it." I do not say that preposition in 
palnable to every body. Some are dispeeed 
to toiidi that the calamity has been occasioned 
in eonseqnence of the sudden transition fiwan 
war to peace, and some dispute that propo* 
sition. Some are of opinion, that if we had 
continued the war, at an expense of a hundred 
miliions a year, we should have inlalUbly se* 
cured the national prosperity and greatnesa* 
I shall not attempt to settle these points, nor 
is that neeemary to die present aignment, and 
I beg lea^Fe to protest against the idea that 1 

S've any opinion ufM>n them at all. Perimpe 
[r. M'Lnren may include me in his oenstue 
iir my wnnt of coorege in not avowing m$ 
opinion. 

^ The fact is we are ruled by men only ee* 
lioitotts for their own aggrandisement; and 
they care no further for the great body of the 
people,, than they are subservient to their own 
accursed purposes. If you are convinced of 
this, my countrymen, I would therefore puf 



SI] 



and Thomas Bairdjbr Sediiian. 



A. D. 1817. 



[83 



tile qifestioiiy «re joii degeaerate eaoogh to 
bear it ? Shall vfe, whose forefathers set limits 
to the all grasping power of Rome ; shall we^ 
whose fbre&lliiers, at the neTer-to-be-forgotten 
field of Bavnockbiun, told the mighty EdWard, 
at the bead of the most mighty anny ever trod 
eo Britain's soiU '' Hitherto shalt thou come» 
and Qo further f ahaH we, I say, whose fore- 
lathers defied the efforts of foreign tyranny to 
enslare our beloved country, meaiiiy permit, in 
our day, without a murmur, a base Oligarchy 
to feed their filthy vermin on our vitals^ and 
rale as as tli^y will? No, my countrymen/' 
A commentary was made on this passage 
though it is not proved that the panel ever 
spoke it. The prosecutor takes it for granted, 
without evidence, that the words were spoken. 
I am, therefore, not under the necessity of de- 
fending these words. But are they in reality 
so culpable ? Are they seditious ? They are 
mere words of course, in expressing those pub- 
lic grievances to which they refer. Every 
^ild knows that they are the common and 
hackneyed terms used by petitioners for public 
reform^ and ^excepting one or two allusions^ in 
which there is evidently no sedition)^ if they 
are not tame and feeble, they are at least neither 
seditious nor in6ammalory. Every word ap- 
plies to the professed object of the meeting in 
petitioning, and to no other object. The pro- 
secutor applies some of the words to the king, 
hut this is a misconstruction quite unworthy of 
my lord advocate. Ministers, and the pos- 
sessors of borough interest, are the vile Oli- 
garchy, who are said to feed their filthy vermin 
on our vitals, and rule us as they will, and this 
attack was iustifiable in the way it was made. 
What would avail the right of petitioning, if 
there vras no right to petition against his majesty's 
ministers and their partisans ? Ministers may 
be impeached in parliament for their public con- 
doct, and they may be complained of by the 
people in their petitions. Are petitions to par- 
lament against ministers to be punisbea ^ 
sedition ? What have we here ? The opinion 
of the panel that the ministers have not acted 
in an honest way, or aa ministers ought to do. 
The opinion b expressed a little strongly, but 
it does not go beyond legal bounds. The pe- 
tition was afterwards laid before parliament, 
aad was received with respect. Now the ques- 
tion before you is not, whether the ministers 
are culpable or not — ^not whether lord Castle- 
leagh or Mr. Vansittart might bring an actioo 
for a libel or defamation— but whether there is 
any sedition in this speech. I ask you, 
whiether there is any sedition is complaining 
of these ministers? Sedition is an attack on 
the sovereign of the state— an attack on the 
government^ not on the ministers of the go- 
▼amnent. You may attack the latter in any 
w^^ withont bang guilty of sedition. 

fiat farther, as to thjB passage about the 
OCgatdiy. It is generally understood that a 
few persons, ootexoeeding 300, are possessed 
of an influence in the House of Commons that 
is very pernicious U> the state. Thia is the 

VOL. XXXUL 



Oligarchy, the government of a few by nneon- 
stitutional influence, alluded to in the panel'^ 




against tlfteKingl against the Lords ? against 
the Commons ? agaiast any branch of the legis- 
laturcr or against the legislature taken as a 
whole? Jt is sedition against no person or 
legal authority whatever. It is, indeed, 
directed against the Oligarchy itself, which, 
in the opinion of the petitioners, is the 
worst enemy of the King, Lords and 
Commons. The King, Lords and Commops 
ought to be independent ; and, if an uncon- 
stitutional influenoe rules over them. Is it se- 
dition to complain of that influence ? Every 
friend to the constitution will complain of it, 
if he supposes it to exist. I apprehend there 
is nothing in this part pf the charge ; and while 
M'Laren denies having used these expressions 
about our rulers, I say there is no sedition in 
them. I would say so, even if the words had 
been used where no petition to the legislature 
was in contemplation^ But, coiasideripg that 
the meeting was called for that purpose, 
nothing can be more unquestionable thaa that 
such language was not seditious. 

I come now to the last of the words quoted 
in the indictment, and I hope to satisfy you 
that there is nothing seditious to be found in 
them. Allow me here to remind you of 
McLaren's situation when he made (his speech. 
It has been proved that the task of opening the 
meeting was imposed on him, contrary to his 
inclination, and came upon him rather unex- 
pectedly. It was indeeo proposed to him eight 
days before Uie meeting, but he was unwilling 
to undertake it, and immediately before the 
meeting be pressed Mr. Samson to take the 
business off his hands. An hour before the 
meeting Mr. McLaren was again urged to open 
the business; and being in soma measure 
compelled to it, he retired for a very short time, 
and made some notes of his short address to 
the meeting. You will see in the whole pro- 
ceeding \hfi most evident marks of haste. It 
is not proved that the last sentence was written 
in his notes. On the contrary, it was not 
written. He was placed on what is called the 
hustings, and delivered his speech during a 
storm of Mrind, rain and hail $ from the noise 
of which, and particularly from the rattling of 
the hail on umorellas, it was almost impossible 
to hear what he said. Besides the words con* 
taioed in his notes, part of which he spoke, and 
part of which he omitted, he spoke other words 
which. were not in his notes. What these 
words were is uncertain,«as they could not be 
perfectly heard. A single witness told you he 
heard and recollected them, though he could 
not recollect any other words of the paners 
speech. There is no great reasoa to rely 
on the recollection of tiae witness, though 
there is much reason to presume that the 
words had not the meaning given to them 
by the public prosecutor. The words in 
G 



791 



57 G£OaGB HI. 



Trial qfAkfonier M'Laim 



{S0 



]|C««liMker it tilling tht Irath, aad thtt if 
Ui«gr had not been attended to» the conduct 
of Ihit societjr wotdd not hvr^ proved so pure 
•s their uileatioiis are stid to iJAre been/' * lo 
tlMut etMy y^ will obs^nwy that a seditioiis li- 
bel wna diipeised over Uie countrr without 
tn^ consequence being cOntmplalea but that 
of inflaming the ninds of the multitude. On 
the other handy we have been it pains to shew, 
that the panela in thii eaae were quiet eiderly 
pereonfi not concerned with any scditiouB so^ 
gielies; not conneeted with any political parties, 
only feeling distresi^ thinking they bad grier* 
aaces to complain of, aad that tbi^ coukf betp 
tsr their sitnatiotis by petitioning parlianient. 
The^ met together in the moot orderly man« 
neiv-rdelibemted as it is usual to do in public 
mneUngs^ — prepared resolutions,"* prepared a 
petitioB,-<--«nd signed it, — and that ^tition, 
though couched in strong tecmsy was presented 
to the Houses of Paiiianient, considered, re* 
eeived, and laid on their Ubies. Is the right 
^petitioning, then, to be interrupted in this 
eatraordina rvmanner, by bringing the pet»* 
tinners into the Court of Justiciary I 

RecoUet that this was a meeting ibr consider* 
iag the propiiety of petitioning the legislature^ 
and that the aMeting would have been alto« 
gtther nugatoiy unlees the persons then met 
bad been allowed to state their opiaions t^ one 
anotheiw In the first page of this indictment, 
the panel is charged with baTihg wickedljr aad 
leiooiously delivered '< a speech eootaimng a 
number of seditious and inflammatory remarlm 
WHi assertions^ eakulated to degrade and bring 
iiilo contempt the Government and legislature, 
and to withdraw thetelrom die oonfidence and 
aibctioas of the people, andiofiU the raidm 
witb trouble and diasention.^' Gentlemen, 
wherever tbe peopk are ezpoeed to i^evaneos 
they necewsrUy moat, when they meet to eoik- 
sider the aieans of redrem, ezprem their sense 
of theae giietances ; and I ask whether it be 
possible to stato pubiie grievances, especieliy 
grievances arising from sudk a source as over* 
taxation^ without in soase way or other reflect- 
ing on the Government. In the exercise of 
our right of petilionilig agsinst grievancto^ 
these grievances must l^ atentioned ; and it 
isimpomibie to mention thei% nr even to 
allude to them, wilbout briuginff the Govern* 
iMtit into discredit. For ttaaaiMe, let a peti« 
tion be presented against over*taiatien> iHmfe- 
ever were the causes of the evtt,^warB just 
erai[^ustr-ttDa.veidafale miefortooeo» or mis- 
•anduetin public afiair^-^ is lawful to stato 
the grietunee. But can it be atated without 
affKtingnwireorleM, or atannpting to aflect 
tbe puUic opinion as ta the ments or demerits 
«f adminiBtmtaeo? Every pubiie statemeni 
aaspeeiina pubiie aAira has that tendency. 
Bat are the people to be interrupted en siMh 

rmnds, in the eieicise of their just rights . 
is of the esence of their right to cooapiain 

* Fysba Pahner'a case % How. Mod. St« 
Tr, 371. 



of grievgucas, and therefore I appr«^nd yo« 
must disregard entirely those general expre** 
sions in the indictment, charging McLaren's 
speech as tending to bring the Government 
into contempt. The petitioners felt griev*' 
ances ; — they prepared petitions, and it is im- 
possible to state a puolic grievance without 
throwing blame upon the Government. I do 
not mean to examine the question, whether 
there really was any blame attachable to 
Government ; for it is the same thing in Ihia 
case whetherthe petitioners were right or wrong 
in their statement. My defence is, that they 
were in the fair prosecution of legal views* 
Suppose no words to have been uttered but 
what would, in other circumstances, have bean 
considered seditioust their having had a right 
object in view is a good defence. But every 
sort of obloquy has been thrown on the petiti- 
oners, without any notice of the lawful object 
they had in view, as if their oliject were to bn 
laid entirely out of consideration. 

The legality of the object, and the situatiott 
in which the speeches were uttered, are die 
most important eireumstances of the case. 
Every thang else is of a trivial and subordinate 
nature. But let us see what the panel ia 
alleged to have sai4. No positive evidenee 
has been adduced to prove any part of bia 
speech, eacept a few words at the end of tlier 
passage quoted in the indictment, and, so for 
as I have observed, you have onlv the uncer* 
tain evidence of one person to tnese words# 
I shidl remark upon the words in the indiel« 
ment. 

" That our sufferings are insnpDortp.ble» ie 
demonstrated to the world.** I ao not any 
whether their sufferings were insupportable or 
not ; but th^ appear to have been severe, and 
the people were met for the purpose of com* 
ridering them, and to join in petitioning for 
relief. Here I presume is no sedition. 

'* And that they are neither te&^Mrary, nor 
oecasibned by transition fix>m war to peace, ia 
palpable to all| though all have not the coumga 
to avow it.'' I dd iK>t say that proposition ia 
palnable to every body. Some are dispeeed 
to uiidL that the cahunity has been occasioned 
in eonsecpMnce of the sudden transition flnoaa 
war to peace, and some dispute that propo* 
sition. Some are of opinion, that if we had 
continued the wgr, at an expense of a hundred 
millions a year, we should have infollibly so* 
cured the national prosperity and greatnem*. 
I shall not attempt to settle these points, nor 
is that neeaaiafy to the present argument^ and 
I beg leMFC to protest against the idea Aat 1 
give any opinion ufM>n them at all. Periwpo 
Mr. McLaren tnay include me in his oensnrti 
for my wnnt of courage in not avowing mijp 
opinion. 

'' The fSaet is we are ruled by men only a<>* 
lioitous for their own aggrandisement; and 
they care no further for the great body of the 
people, than they are subservient to their ow« 
accursed purposes. If you are convinced of 
this, my countrymen, I would therefore pu) 



«Il 



and Thomas Bairdjbr SedUion. 



A, D. 1817. 



[83 



Ike qifestioii, «re jmi degeaerato enough to 
bear it ? Shall W€^ whose forefathers aet limits 
to the all grasping power of Rome ; shall we^ 
iFiiyMe fore&lheiaj at the never-to-be-forgotten 
field of fiaaiKwkhurD^ told the mtghty EdWard, 
at the bead of the most mighty army ever trod 
•n Britain's soil, '* Hitherto shalt thou come» 
and no further f shaU we, I say, whose fore- 
^thtis defied the efforts of foreign tyranny to 
eoslave our beloved country, meanly permit, in 
CHir day* without a murmur, a base Oligarchy 
to feed their filthy Termin on our vitals^ and 
rale as as tliby will ? No, my countrymen." 
A oommentary was made on this passage 
though it is not proved that the panel ever 
spoke it. The prosecutor takes it for granted, 
without evidence, that the words were spoken. 
I am, therefore, not under the necessity of de* 
fending these words. But are they in reality 
so culpable ? Axe they seditious ? They are 
mere words of course, in expressing those pub- 
lic • grievances to which they refer. Every 
child knows that they are the common and 
hackneyed terms used by petitioners for public 
reform^ and (excepting one or two allusions^ in 
which there is evidently no sedition), if they 
are. not tame and feeble, they are at least neither 
seditious nor inflammatory. Every word ap- 
plies to the professed object of the meeting in 
petitioning, and to no other object. The pro- 
secutor applies some of the words to the kmg, 
but this is a misconstruction quite unworthy of 
my lord advocate. Ministers, and the pos- 
sessors of borough interest, are the vile Oli- 
garchy, who are said to feed their filthy vermin 
OQ our vitals, and rule us as they will, and this 
attack was justifiable in the way it was made. 
What would avail the right of petitioning, if 
there was no right to petition against his majesty's 
ministers and their partisans ? Ministers may 
be impeached in parliament for their public con^ 
duct, and they may be complainea of by the 
people in their petitions. Are petitions to par- 
mment against ministers to be punished ^ 
sedition ? What have we here ? The opinion 
of the panel Chat the jninisters have not acted 
in an honest way, or as ministers ought to do. 
The opinion is expressed a little strongly, but 
it does not go beyond legal bounds. The pe- 
tition was afterwards laid before parliament, 
and was received with respect. Now the ques- 
tion before yon is not, whether the ministers 
are culpable or not — not whether lord Castle- 
xeagh or Mr. Vansittart might bring an actioo 
lor a libel or defamation— >but whether there is 
any sedition - in this speech. I ask you, 
imtber there is any sedition ip complaining 
of these ministers? Sedition is an attack on 
the sovereign of the state— an attack on the 
government, not on the ministers of the go- 
▼emment. You may attack the latter in any 
way, without being guilty of sedition. 

jBot frrther, as to the passage about the 
Ofigaichy. It is generally understood that a 
lew penonsy not .exceeding 300, are possessed 
of an influence in the House of Commons that 
It very pernicious to the state. This is the 

voL xxxni. 



Oligarchy, the government of a fhw by uneon- 
stitutional Influence, alluded to in the paner^ 
speech. Is it sedition to take notice,, even by ' 
allusion, of such a public grievance ? Is this 
sedition? Against whom is it sedipon? 
against tlfte King? against the Lords? against 
the Commons ? agaiast any branch of the legist 
latore, or against the legislature taken as a 
whole? Jt is sedition against no person or 
legal authority whatever. It is, indeed, 
directed against the Oligarchy itself, which, 
in the opinion of the petitioners, is the 
worst enemy of the King, Lords and 
Commons. The King, Lords and Commops 
ought to be independent ; and, if an uncon- 
stitutional infloenoe rules over them, is it se- 
dition to complain of that influence P Every 
friend to the constitution will complain of it, 
if he supposes it to exist. I apprehend there 
is nothing in this part of the charge; and while 
M'Laren denies having used these expressions 
about our rulers, I say there is no sedition in 
them. I would say so, even if the words had 
been used where no petition to the legislature 
was in contemplation* But, considering that 
^e meeting was called for that purpose, * 
nothing can be more unquestionable thaa that 
such language was not seditious. 

I come now to the last of the words quoted 
in the indictment, and I hope to satisfy you 
that there is nothing seditious to be found in 
them. Allow me here to remind you of 
McLaren's situation when he made (his speech. 
It has been proved that the task of opening the 
meeting was imposed on him, contrary to his 
inclination, and came upon him rather unex- 
pectedly. It was indeeo proposed to him eight 
days before the meeting, but he was unwilling 
to undertidce it, and immediately before the 
meeting be pressed Mr. Samson to take the 
business off hb hands. An hour before the 
meeting Mr. McLaren was again urged to open 
the business; and being in some measure 
compelled to it, he retired for a very short time, 
and made some notes of his short address to 
the meeting. You will see in tho whole pro- 
ceeding tlve most evident marks of haste. It 
is not proved that the last sentence was written 
in his notes. On the contrary, it was not 
written. He was placed on what is called the 
hustings, and delivered his speech during a 
storm of wind, rain and hail ; from the noise 
of which, and particularly from the rattling of 
the hail on umbrellas, it was almost impossible 
to hear what he said. Besides the words con* 
taioed in his notes, part of which he spoke, and 
part of which he omitted, he spoke other words 
which. were not in his notes.. What these 
words were is uncertaiD,«as they could not be 
perfectly heard. A single witness told you be 
heaid and recollected them, though he could 
not reoollect any other words of the paners 
speech. There is no great reason to rely 
on the recollection of tiae witness, though 
there is much reason to presume that the 
words had not the meaning given to them 
by the public prosecutor. The words in 
G 



1071 



«7 GGOltGfi til. 



Trial^Attmmdtr M'Lartn 



(10* 



•rdkr !• point out from reotat «nd domMit 
aotboiity> how tlearly tbo doctrine of renstance 
it tecogntsed among all who hai*e ttndied our 
oonttttution, and h^w boldly it is held foithy 
Ofan 4>y the official adviMvs of the crown, at 
th^i ultimate resource which the eonslittttion 
allbfdt when an extrema case shell aivive. 
flow, no nror^ extreme oase can be soppooed^ 
than that of the prince setting himself m op- 
yiosition to the voice of bis whole people, and 
lifaat is the onl^ sense which cen be put on tiie 
fMSsage here in craestion. Resistance is a la- 
mentable and a dreadful remedy ; but h may 
lie a- necessary one : and though we ought to 
tsdce it for granted that the necessity will never 
decur, we cannot allow its existence or its 
#ficaey to be qaestioned. ]t is a tnie, bat 
awful maxim, and not fit to be canvassed irre- 
▼erendy in conversation, publie speeches, or 
|pcA>Keations. But in d«0enoe of my client, I 
ai^ that it is a tree maxim, ' and that there is 
oeitber treason nor sedition in stating it, as is 
dome in this pamphlet. 

I shall notfifttigue you by going over all the 
jfmssages whit^are cited in the indictment,1)«(t 
BhaH only trouble yon with one or two, in order 
to settle die sense and constraiftioo, and do- 
e^rmine what was truly and really the scope 
of the whole discussion on this occasion. You 
were told that the qoestion lies here (and I 
agree that it does), Whedier, upon the whole, 
under ai pretense of petitioning, it appears 
ther^ was a purpose ui die minds of these 
«eople not to obtain redrem, but to excite se- 
dition, tumult and confusion from one end of 
tfhe kingdom to the other. That is the ques- 
tsob truly and -substantially; and yuu are not 
V> dwelt on detadied passages, without tahsng 
tnto view idl others -of a hem ambijguotts de^- 
•eriptiott : — ^you are to judge ofthetmportof the 
whole. 

' One of the dtations- in the Indictment is, 
*That the House of Commons b not really 
what it is called ; H is not a House of Com- 
mons. At present we have no rspresentatives*" 
Now this seems to me just such a way of stating 
the thing, as when a person nys, This is no 
bouse — this is no dinner — ^this is no speech, 
meaning it is not what it ought to be. The 
mode of expressing the opinion is^somewhat 
strong, but mat is its roeanrag. It is said in 
the pamphlet, ^And*a House of Commons, 
but the latter is corrupted ; it is dec ay ed and 
worn out ; it b not really vrhat it is called ; 
it is not a' House of Commons." It is then 
explained, '^ The House of Commons in its 
original composition consisted only of Com- 
mons chosen annually by the universal enffrage 
of die people.** Ihete is the difference be- 
tween what it is and what*theperson speaking 
conceives It ought to ,be. when we wish to 
say a thing is not what it ought to be, are 
sometimes express our meaning by saying it 
!s not at all ; and when a person means' td say 
that the representation or the people is not 
what it ought to be, he may naturally enough 
express bis meaning by saying that (her£ is no 



representation at 'all. Ihe statement of 4his 
veiy opinion has ofien been given in this way, 
and has never been challenged. But it is not 
on my authority that I mi& you to take thia 
explanation^ It Is given in express tanss'ife 
the subsequent parts of die very speech froea 
urhieh the expression is quoted. — ^The orator^ 
after some ferther disseitatiun, goea on to sty, 
''Will any man, then, possessed of commun 
sense, say that this is a House of Gommoaa 
agreeabie to mtr CemtUuHony or that it is a FAfft 
representation of the peopled AH this, vo« 
will observe, is in the same speech, and it 
must, by every rule of construbtioo, be taken 
along with what went before to explain and 
modify those more general expressions.— f^iWl 
same explanation occurs in fife other passages 
of the pamphlet^-and leave no room wbatevev 
to doubt, that what the omton meant 'wmi 
merely that the Hoase of Commm» was B«t 
what they wanted, and was not ajakr md e^nal 
representation of the people^ Is it sedition to 
say so ! I for tme 'think ^e present l epwsc a i " 
ation a very benefieial one; uid though It 
might be made more agreeable to theory,! 
should not expect great benefit from someeC 
the change* which have been proposed. Btft 
caA -it be cidled a &ir and equal repicsentatioti 
of the people in any sense of the word? 
There is nardly any person in Kilmarnock who 
possesses a vote. — 1 do not say -there iaany 
disadvantage attending the prmnt represent- 
.ation, but other persons may thiidc difterentlr; 
and sure I am tnere are plausible gro u aid s for 
any one sayingp, he womd like to see the ffs* 
presentation reduced- nearer to the theory of 
the Constitution. Upon sjrstem and prrndpla 
the representation ought to be altered in somo 
parttcidars, though, upon tike whole, I do vec 
expect the mtgbty erocts from any aiteiutioii 
which some people do. The passage In que»-> 
don is a short, raetorical> pithy, foreiMu way 
of expressing the speaker^s opinions ^t ha 
obviously meahs- t&t the representation is 
unequid, that it is not sufSeient, mid not 
agreeable to the theory of 410* Constitution 
That a man should be prosec u ted -for eedition 
for appealing upon such a point to the nutlNH 
rrty or Parliament was never heard of before. 
But it has been the ftte ^ the panels to be 
accused of arraigaing the Conrtitotion, wtrile 
contending, as they thought, for its restoration 
to ptirity and vigour. 

I now turn to flie definition of sedition in 
onr laH^ books. To commit sedition, you 
must, in direct tetms, or by unequivocal insfn^ 
nations, excite discontent and disturt^anoe 
against the present state ahd cofnstiCuted atf^ 
thorities of the country. Mr. Hume, «4io ia 
not supposed to have looked upon aedition 
with* any extraordinaTy lenity, expresses him- 
self thus: ^It reaches all dmse practices-, 
whedier by deed, word, or writings or of 
whiitsoever kind, which are Suited and im 
tended to disturb tbe .tninguillity of th^ 
State;— for diapiirpose-bf pfodttcing piA>l§e 
tioi^le or commotion^ and moving fait M n« 



100] 



ami Ikomi Sairdjbr S^dUion* 



A. D. 1817. 



1110 



j«iy!ft iolfeoU to ifaft'diiiti** mHteac^ or 
rabveni«i of tW«taliisht4 Oofenmeiii and 
lanriy or iettled 6mh and order df duiigt/' 

Ben MB^ bj iriMft.iiialiMoeB and cpumofdes 
lio iBaMntrs «Dd caplaiot km defimlion.-*In 
evoij oe% yott 'will olntrva^ W Jdikcs.it an 
indispenttoie qoalifiaition that there thoidd 
be "aaMe dlracr exhertatinB^to the people to 



if f«. Hum. ie leAed tmoa as a great advo* 
te the: cAwxi in 'hi* obeervatiOBa mi 
Thu tiMB ut wUdi he vrole bii 
mi thadavoft thiaiohgeet aie tiip^ieeed' 
to taie.girea a btaa- 1» hii .'opinBnMv of .whiaii 
he ftraa piehably iwiaieihie. There iaa pra* 
g epiaioB at 4etea' to ihis effect, in the 
.OM of -thb ■daad'eepaeiaHgry-^aQBfQBiidcd 
io all paebeUilj^'tet cMnnly veey geocndfy' 

(' Utty^ it, % ceaneoQ oaiaiea 

faia-irealiee; aad oetlahd^r hia ar*< 

laeanied aeluraeH 

go; ' turn heok waa pufaliihed -leoeaaly 

ei theieoantiy^ie^ 

*" r£»r 2SS:; 

impul 'hia/opiBie»oD'theaohjec>j 
Yei^ alriflifar 'ind. wgeroaely- aa* it iaa« he 
thrtigii he ^edowp th> iawr^ it wiii he^eedt 
ha gmipiqg!:aBd[i compKheaMve 
doea-.net iaehide the..Ga« oCbthe 
pMi%» bet. tint eeefT'-ooe efhia 




otMbe.peefde^iectite tor lh«Bieelreieoaie< pert 
of thet pearee liUeb beloegs to^ other ihanda. 
Bet ia -the* pteaeat cae^ thaie are -oe waade 

'idee, te here bcea aeteftaiaed 

iM^aotteef the 

jopen aa oedinatiny 

pnrpeae. There are 'word%indned^ 

leeuediet the' idea^sf ae^ 

ilncthe.jpeachoofi Ma. JMid« 




^jsaaeiew $»dgfimf kkead9% 
mMMhon Mtfaflnae.verfti/tdrf^ 
IfamthJeipieniiieytathepett ^Jthanffioiaat 
djnetnaiaphutriat ee.'aaa<hear ^ ii bcmMa: 
Ibeoietor aeswen hiinaelfiths%(¥ItgiMrca 
c ngAii Al %. aoB^Uiti ^fm^ t*e Mkig end 
Mk JbaBBi ajT PMioeraT/iei^ h riffbt to be^ 
bend^eed f e ban e d ^■tarwe^ieier. ' Let oe 
thi»;dey "tabiMe the pririlegeidf oelr f^ 
rioasCooetitvtion^ i^ vt- kiy mtr peii ii um te> 
.^reAe^atod ae eeit oii^ figbteat Men^end aa 
firitoos;** If tera aflQr thing eqemleat' ia 
aeditioB here. 

I sight^pat the atafter abo to die test eC 
wbet the pmionaM: did» Did thej oroaoise 
eay sodhtwa te.eomepoed iirth? : Didahcv 
afflitte thinlie»tadi thei Ufaited IhshiHBP 
^h PhUfaai^deeiaie their ^^e^nirittaes pam 
aieeet^.er jpmHde^iap ee^ waj^fbetbeirfetuw 
ptnefts^ingBh-.tlB'-ahertP arfaet did 'tfief do^r 
ThejKdidK: jest ullat. they ytofterad teido(,«** 
thi]r pet^oDedPashaneet, and. having sent off 

liouw quietly- to tlnn 
Mo mrelBig.- hap ever 



at RilAamedi sieoe the eTeeiiation waa nade 
in Dean-Fbrh; aad if that ia the way in which 
the people are to attaviala their diatresses, it ia 
at least aa inaeeeet aameniag npacoiaa ai the 
gin-shop. Bot we most go berk to our eeatar* 
Ue prooteda» '* let oe^ tl^etelbraf (aseerery-eonp 
stiiMtional aseans toi reeeaor oer ieat tightly 
rights which oer ancestors ci^oyed aad eacr^ 
cised; let na.bt finsi asMi neaMmons iaifrnr 
resolres, that we mU not hcdsMived of oer 
pHvifegea any leeger, that we eiaiai. theei aa 
oar bvtfarighty and hyowr qmUmid .ectttftHm 
tkmol esedM^ shew oair enemies Umi we iUtt 
ommckjf^ r^fffimmn, mid eiarpstiee^.and thai we 
want nothing bet what is lor the gsneral good 
of the ceeatfy/' Bet tbescv it baa bean se^ 
are pteteeces»' pot on to disguise the real 
^okedness of their designs. 1 tbink yoe eae 
iw.ne dengar. Gentlemen^ of belieriag thnh. 
'Whaterer feutts these pdeple may have oooi» 
tniHed^ 1 em eeeddent yon wiU not find them 
gmkyefhypeorisy. My own oaeviefion is^ 
that they have apdcen nu>ra rselentlir than they 
intended ; but I am- sure yen wtU give tha* 
cr edi t et least -for all the moderation they pro^ 

fees. 

Thcie is a great deal more to be said on the 
other parts of this pebhcation. Mr. Cmig 
makes aa do^ucat oarengoe; There is a 
great- deal of poetry in his steech. ** Being 
then, my bretmreny impelled by B«tessity» let 
us eppraach, d is p lay ing reesoa and resolutaeaa 
like -men who know tWir duty tiul their ob^ 
Ject. Yea, witb these- and similar princinlea 
ma^ we- nndauntedly ge forward^ and Hk* 
tegitimala aens-come to-te years of mejority^ 
let as in the nacM of law end justice demand 
the inestimehle end dearly pnrohased beqeeat 
of our woithy progenitors^ "that we may enjoy 
it oiMBeleps^ and transoHt- it te a landing poa^ 
terity^ And 30 aol, Aweiting the fiat of hiak 
who» »agmd i c d> hot the pcmona of asee» bvt 
htmndnili^fte the cries of th4:pecr, and ^ndeth 
the c an iaef-4ba distiiesaad^ nlwaTa^mtingior 
oor toeonmgemena Me $imem"0f Ms mp ir t m 
ee<» HtJdsiereeasded for our instmetienyWdelKir 
ket ineuMt dtmmA pteteikd with the uiiust 
judge, that althongh, witiieut any regard to hie 
high obligations^ yet wae not totally destitnte 
of that piftnciple which aDakea ell bttnan kind 
qnake, when reminded of- neglected duty. 
Mny we be actuated by the same oonrage te 
eo aad do likewise." Here^ again^ tou see 
how diatinody their iriews were limited to the 
peeodhl iteratten of petitions. 

The p u rpose of the Aesolutions, too, haa 
been cntirmy misnndMetood. In the Mh it.ia 
saidt ^ That the dibt; now amewiting Co nearly 
l'jCNK>>milliDna^.ba*bedn^con(racted1mthe pro»> 
seeetiod-of -onqust and-nnneceaaiky watVy^by h 
odmspt admihistMieai^ enifeMUr ''supported 
bymrlioeae .of ComaMdS) v4eah conjidt be 
said$ < with' enyt^jnsiaeef) ft) tee './fair' eetf apni 
ft^rCMntalismiof' ttte^icenhtifyt buV.irbiidi 4&t 
themmet part' is' cdmpeted'of'^nHir pet In by 
a berough fetatiuny who hihr^ruanrped'tbevights 
of the ^ple^^endwho bymaiae 



Ill] £7G£0R6&III. 



Trial ofAlmmier M*tAr«n 



inn 



«otttrited to retttrn a majority of niemben of 
that House/' Th^ fiicts here stated are trite 
and stale, but the passage is worth noting, as 
aUbrding, atfd that in the most anthoritative 
and ofi/v deliberate part of the pnblicatton, the 
most dear and complete eridence of what 
Ibey meant when they used ezpresfions Titu- 
perative of the present House ot Commons. 

llie 9th Resolution is, ^ Being, therefore, 
impr^sed with the tiwth of these Resolutions, 
tiie meeting lesoHre to present petitions to his 
Royal Highness the Ftince Regent, and to 
botn Houses of Parliament, requesting his 
Royal Highness in particnlar, to attemble Por- 
luuneiU without delay; to call upon it imme- 
diately to adopt such measures as may tend to 
restore to the people their undoubted right in 
the representation,— to order, in the name of 
the people, an immediate reduction of the 
taxes* ai\d the standing army, the abolition of 
all unmerited pensions, sinecures, grants, and 
other emoluments, as the surest way of esta- 
blishing on a firm and lasting basis the rights 
of the crown, and the privileges of the peo- 
ple ; and that in all time coming, no person 
who has an office, or place of pront unaer the 
King, or reoeiines a pension from the Crown, 
shall be capable or serving as a member of 
the House of Commons. 12. Wm. III. c. 2." 
It is quite plain from the context, that it is 
ike whole Parliamenif and not the Prince, that 
is called upon to order an immediate reduction 
of the taxes, the standing army, and so forth ; 
—so that the eloquent exposition of the lord 
advocate upon this passage was founded upon 
a manifest misconception of its meaning. 

I have only to cidl your attention to the next 
resolution, which clearly shows the scope and 
extent of their views and threatenings, ^ And 
the meeting hereby resolve to make known to 
his Royal Highness the Prince Regent, and to 
both Houses of Parliament, that thegf wiU not 
ctate tending t^i <me fetOion efUr another ^ ami 
ming every conttitutiomd meagare insured to 
them by the laws of the country till they obtain 
the restoration of their rights auul privileges as 
men and as citizens of the stale." This is the 
only practical resolution they came to ; and 
even this was not acted upon, for it appears 
that no other meetings have been, held, or pe- 
titions transmitted fVom that time to this. In 
the same way ' the meaning of the words, 
** Shall we bear this,'' or similar terms, is, 
throughout explained in the dearsst and most 
precise way to lie, Shall we bear our sufferings 
without complaint, vrithout munnuring, with- 
out stating our g^evances by application to 
the proper quarter? ** So far Irom ceasing to 
complain,'' they say ** the damour of our cries 
for ledms shall ne#er cease to ring in their 
•ars^ till the abhorrent temple of oonruptiOB be 
annihilated, and the banners of freedom vrave 
from the heights of Dover to the mountains of 
the Vorth." That is a lofty passage, and foil 
of eloquence certainly. But in every one of 
the speeches, in whidi it is anxiously stated, 
not only that there are grievaaoes, but griev- 



ances which could not be bonie, ^rhat do they 
propose to do ? Do they propose to attadc 
the throne? No; they merely say. We sdaU 
apply, like the importttnate widow, and 
reiterate our clamour till we waary you, or by 
the force of our reasoning, prevail over ytmr 
prdndices. 

There was one part of my leanied friend ther 
lord advocate's speech, of vrhich I am really- 
unvrilUng to ssy exactly what I think, or ex- 
press the feelings it excited. I mean the pas^^ 
sage regarding the army, .vrhen he spoke as if 
there had be«i a disposition entertained by 
some of those at the meeting to induce thr 
army to rebel against the government. The 
only libel I have heard to-day is the sup- 
posing, for a moment, that such ah intention 
could be entertained, and vrith any the 
slightest hope of siibceBs. 7[he policy of keep- 
ing up a standing army was long the subject 
of discussion in parliament, and the dahger of 
it to the constitution was much insisted on, 
while, latteriy, such a danger has been lean 
apprc4iended, and the great eonsideration m 
questions regarding the army has been the ex- 
pense which it necessarily imposes on the 
country. But whatever opinion may be en* 
tertained on this subject, there was no die- 
ciission at this meeting on the expedioicy of 
a standing army; and Sie passage in questtoa 
is most manifestly intended merdy to meet 
this common and almost obsolete Whig topicy 
and to show that it was not from that quarter 
that danger was to be apprehended. I say- 
that this was obviously its meaning, if indeed 
it is not rsither to be regarded as a piece of 
mere dedamation upon a very popular and in-* 
viting theme. Nobody at present thinks iU of 
the army: on the contrary, it' is scarcely 
possible to speak on any public subject, vritfch- 
out taking an opportunity of saving something' 
in the praiw ot the army; and .to endeavour 
at a piece of eloquence in its favour ie tlie 
ordinary style of writers of all descriptions. 
The hope of seducing it from its duty and 
allegiance, if it were not too wicked, is mr too- 
absurd to be entertained even by the moat 
desperate conspirators. 

In another speech it is said, " It is higb 
time, when they have robbed us of our money,, 
deprived us of our friends, violated our rights^ 
and abused our privileges," — it is high time 
for what ? to take up arms and overthrow the 
government P no such matter— only ^ To db- 
numd redreu far such treatment,*' The orator 
then goes on, " But, methinks I h^ar theaa 
say, we are determined to give no redress, we 
have huddled ourselves intoplaces> pensione 
and sinecures, and we are determined to hold 
them. This I think is thdr language." Wdl, 
wdl, what then? In ihis desperate case, 
proceeds thia seditious orator, ^ We must seek 
redress from another quarter ; we wmtt petiOom 
hiirdyaihighnett the Prinu Rtjgent to remove 
our grievances ! to give us a psriiament of our 
annual choosing, yUndk will represent us tn a 
form agreeable to our vrisbes^ and i^ceahlft 



1191 



(Uid Thomas Bairdjbr Sedition. 



A. D. 1817. 



[114 



to the constitiitioo." Is it said that this is 
hardly a coTer for professed rebellion? In 
answer, here is another passage, ^* The unani- 
mity of our sentiments and exertions^ agrtedbU 
io tke constUtUion, will once more dispel the 
dood which eclipses the resplendent and 
animating rays of liberty, and will again make 
her shine forth in this once happy country 
with unimpeded effulgence.^ The last speech 
ia the pamphlet ends thus : *' Permit me now 
to conclude in the inimitable language of our 
celebrated bard, and friend of liberty, Robert 
Boms — May tyranny in the ruler, and licenti" 
manea m the people, find in each of us here an 
ioexorable foe.-' 

There is another passage where allnsion is 
made to re?erend hirelings, upon which the 
lord advocate bestowed his eloquence as need- 
lessly, and, I am sure, with as little effect as 
on the passage about the army. In that quarter 
of the country, a tendency to fanaticism 
rather than to irreligion might be expected ; 
as it was there that presbyterianism first struck 
root : and in this very pamphlet you will find 
passages similar to those employed by the 
CoYenanters in the Tales of my Landlord. 
"^ It is there you will see bow Egypt flourished 
under the wise administration of Joseph;— 
and what the heard-hearted and inquisitorial 
Pbamioh did for the. sons of the Nile ; — it is 
there you will see what Solomon did for 
Israel ; — ^with what Jeroboam, Nebat's wicked 
son, and odiers, brought upon the (now) 
wandering sons of Jacob. It is there you will 
see what Nebuchadnezzar, £vil-Merodach, 
and fielshazzar, did for the now extinct Baby- 
lonians ; — ^how Persia rose under Cyrus, and 
sunk under the bloody Cambyses," &c. &c. I 
am confident, indeed, that you cannot look 
into any part of the publication, without 
seeing great reverence for scripture/— « calm, 
temperate reliance on the assistance of Provi- 
dence in all good acts, — ^a reliance to be 
founded on good moral conduct and prayer. 
The term, ^ reverend hirelings," employed by 
tliese rude orators, might be considered per- 
haps as not undeserved by certain clergymen 
who leave their proper duty for making pro- 
selytes in politics ; and persons who do not 
agree with them might say,- with any purpose 
but an intention to bring discredit on religion, 
that they had been hirelings • in certain parts 
of their conduct. Nothing is more innocent. 
The attack might perhaps have been made in 
a more decorous manner, but surely there is 
no pretence for saying here, that there is any 
design to excite a spirit of irreligion. 

I have now gone through the publication ; 
and I leave it to you to determine on its na- 
ture,--only reminding you that it is a funda- 
inental rule of law, that a seditious intention 
19 necessary to constitute sedition. You will 
therefore consider, whether the object of these 
people was merely to petition parliatnent, or 
whether, under the false and assumed pre text 
^ petitioning, their object was to excite sedi- 
<MB aiBong the peonter*aBd to spread misohief 
VOL. XXXlfl, 



and disturbance ip the country* In judging of 
this you will remember wliat you heard in 
evidence as to Mr. Baird, of whom you werjg 
told that he would be the last man to join ia 
any treasonable or seditious enterprises, and 
that he was accustomed at all times to check 
the folly and infatuation of his neighbours. 

I have already detained you, I am afraid, 
unreasonably long, but I cannot leave the sub- 
ject without taking some notice of the prece- , 
dents respecting trials and convictions for se- 
dition which have taken place in this Court . 
They are all of very recent date, having oc- 
curred within the memory of most of us ; I 
believe there was no trial for sedition earlier 
than the year 1792. There are, indeed, some 
ancient cases thinly scattered in the records of 
the Court, but in all these the crime was ac- 
companied with other offences, by which the 
sedition was aggravated. There is no case of 
mere sedition, earlier than the date I have 
mentioned. That date must strike you at 
once as affecting the character of all those pre- 
cedents. For it is never to be forgotten, that . 
they, one and all, took place at a time, when 
the minds of Juries, and of Courts, and indeed 
of all persons in the country, were in a state of 
unprecedented alarm for the safety of the con- 
stitution ; at a time when acts and expressions, 
which undoubtedly would not have been taken 
cognizance of, in happier and more serene 
seasons, were considered as of the most danger- 
ous tendency ;--at a time when this country 
had recently engaged in an alarming war with 
a powerful enemy, — a war, not arising from 
disputes about territory or points of national 
honour, but which, proceeding from enthu- 
siasm and madness on the one hand, and un- 
defined fear and resentment on the other, 
arrayed every individual in both countries in 
personal hostility against every other:—- a war, 
indeed, proclaimed against all established go- 
vernments, by a coyntry whose whole interior 
exhibited a phasis of confusion and crime, and 
breathed forth a pestilential air, which threaten- 
ed to spread the contamination through all 
the neignbouring regions. We fought not, as 
in former wars, with men formidable only by 
their numbers, their skill, or their courage, but 
with men whom we imasined to be armed 
with a deadly poison, and zealous to spread 
contagion wherever they went. In tliese 
times, not only was there a raging war with 
that natjon, which was loudly threatening an 
invasion of our. shores, — but it is impossible 
to deny that there was an established centre 
of rebellion at home, looking up to France as 
the great redresser of wrongs, asking its assisV 
ance to rear up every where, the cottage on 
the ruins of the palace, and to carry into exe- 
cution the most visionary and absurd plans 
for the regeneration of society. Coidmunic»- 
tions of a most dangerous nature were pasi^ing 
between the two countries, and the crisis 
seemed as imminent as any the world cve^r 
saw. Such was the distressing condition of 
this eountty^ tl|at it was impofsible to remit 

m 



rr53 



57GEdRGBMlL 



Ttiftl of Alexander M^Lnttn 



CIM 



for'an instant, tlie mo^t Watcbftil police over 
the bonduct of the disaffected. And what was 
kctually their cdndaqt in tJbat season of general 
alarm P Why, they were found in innumerable 
multitudes holding 'meetings thronghout the 
whole land, — not going out one da^ under a 
feelhsg of distress to petition the legisUture, — 
but forming themselves into permanent dnd 
affiliated societies, corresponding with one 
another throughout the whole kingdom, and 
Ivith societies abroad, and smitten to such & 
degree with an ambition to imitate every thing 
in France, as to adopt French names and ibrms 
in their associations. In short, an organised 
system of disaffection was formed^ calculated 
to strengthen the hands of the enemy, and to 
unite all the domestic desperadoes that could 
Be mustered against our own established govern- 
ment. Such wajs the condition of the country 
wben the trials for sedition were first brought 
on. In' the course of ten months, societies 
had been established, not only in every con^ 
siderable town ip Great Britain, but in every 
Kttle village, which, as branches of the ffenersu 
society, appointed delegates to it. I tnink I 
km not exaggerating the condition of the 
oountry at that time, with a view to suggest, 
nor do I give this as an apology for some of 
the proceedings which then took place ; but I 
state it as it really was, that you may know 
the true character of those proceedings. 

The first trial was that of Mr. Muir.^ It is 
with pain I recollect that case. With all due 
respect to the Court and the jury that tried it, 
]E cannot think it a precedent to be commended. 
1 cinnot but consider it as an occurrence to 
be lamented — since unfortunately it cannot be 
Ibrgotten. Tet, in that case there were many 
circumstances of aggravation, of which there 
is DO shadow to be found here. Mr. Mnit 
was a member of the society of the Fiiends 
of the People in Kirkintilloch and in Glas- 
gow. He had gone to France, where he 
Tematned till aft.er the war was declared, fie 
came back to Ireland, and assisted at several 
Wetings of the United Irishmen, and then 
return^ to this country, when he was arrested 
and brought to trial.^ Ilie charges against him 
were relevant. He was accused of having 
excited the jpeople <o disaffection to the king 
and the established goTemment t he was ac- 
cused of having industrioiuly circulated the 
work entitled the Rights of Man, and other 
publications of a pernicious and seditious de- 
'tcriptioD. I am old enough to have attended 
Ibe trial f I was not then at the bar, but I per- 
fectly remember the leading features of the 
case. I think the evidence was scanty ; but 
still the charge was relevant ; and if the proof 
bad been satisfactory he was guilty of sedition, 
and therefore liable to punishment. At that 
tim^ there was a combination which seemed 
pregnant with danger to all existing establish- 
ments, — a combination formed by societies all 
over the country, who appointed deputies to a 

• •.41ldw.MtHi.St.Tt, tiT. 



gen'etttl meeting. The ciitmlattoii i>r ioM 
works as Paine's Rights of Man Was at that 
period likely to produce mncH evil. I believe, 
however, that feelings Of compassidn 'for Mr. 
Mnir were general. I hope they are perfect^ 
consistent with ntter detestation of sedhion: 
I "believie isentiments of regret fdr the neCes^ty 
which led to his .prosecution and conviction 
were universal; and I say, Vrift all due snb^ 
mission to the law and the verdict of the Jnrv^ 
that very many loyal subjects thought there 
was loom for a verdict of acquittal^— that the 
bulk of the nation regarded the sentence as ikB^ 
ilecessarily severe. 

The next case was that o? Fyshr Plilhier?* 
Re was also connected with the Friends of 
Freedom, and had circulated a political haaft^ 
bill in Dundee and in Edlnburgn add^ssed h> 
jthe Idwest people. Hundreds and hnndred^ 
of 'these, addressed to all and sundry,^had beeti 
by him committed to the winds of heilven ; and 
surely to sow such doctrines broadcast in ^\$> 
reckless way, without pretence of anv'speciiil 
end, was criminal and punishable. 'Ine hdtid^ 
bill contained much inflammatory niatfer,'atiil 
was proved to have been circulated by him. 
ft was addressed' to alt and sundry, and at m 
time when the minds of the people were ia' 1 
dangerous state of irritation. No direct Te^ 
medy was proposed for any of the evils com- 
plained of, ana the only obj6ctinvieW seemed 
to be a dangerous usurpation of j^o^er. I"S^ 
there was real sedition in that c^e;^d thkt 
it had no resemblance to the present, 'whiffy 
there Was merely one meeting, and one set of 
speeches, for the special Object of 'pl^&pafing {^ 
petition to parliament-^wiUi the {Trepanttion 
of which the-whole business actually cidSed. 

The next and the onlv other cases WcyeihttsD^ 
of the members of the British Coki^n^6o*^. 
Skirying,t MargaTot,J Gerrald,§ and othet^^ 
and certainly the existence of that tfttradidi-- 
nary association gave a peculiar character ^to 
the whole of these cases. That foi'midalAe 
body, you may remember, was composed of % 
set of persons acting as delegates from the re^ 
motest parte of Great Britain, and who hadFM 
lawful cusiness in this place, -and no dtB^ 
visible purpose (han to excite disaMe^doii^^ 
who haa no such thing in view as petitionitijg 
the legislature^ but who wished to organise a. 
power independent of it, unknown *to 3ie con- 
stitution, and incompatible with the existence 
of its great institutions. They bad priv)Eite 
meetings, and committees of emergehcy, isotoe 
of which were only to act in the event bf a& 
invasion by a hostile force. £ven taking th6 
statement which . was made b^ those pe)rspns 
in their 6wu defence, and looking to tiie'si&ai> 
'tion of the times abivad ahd at home,* it i» 
impossible to doubt that it was ne<^esstir^ to 
put down the Convention, and to inflict ^ ' 

: \ f f 

• 2 How. Mod. St.Tr. 237. 
+ 2 How. Mod, St, Tr. 391. 
t 2 How. Mod. St. Tr. 603. 
\ 2 How* Mod. St. Tr. 8d3. 



nn 



and Tk9m<u Baird/or SedUUn. 



A. D. 1S17. 



jwhmQnt on SQch as Skirripe. I need |o no ; 
mithier kd^Q 4«taib, bu( shaU loerelj mention 
that tbeie ipia real, actual^ and palpable seji- 
tipu u^ that case. Mj burpos^ ln,^lluding ^9 
them, is to cbntnat them with the pr,esent 
m^; ^ e^ in thosija tiiq^y and under all 
j^^ deplppiblf ^itciunstajices ^liichl haye 
ni^jpiKta, tkis c^fi voutd bare t>^en Tiewed 
▼eiy did^i^tly fyom^ ti^e cases then tried. 

The tpalof l^bert^n aqd Berry* tool^ place 
jU a \^v^ tu more critjioal than th^ present. 
Zlier wm tri^ for luinting and publishing a 
bpok entitled Tfi6 Pojitiq^l Progress of Scpt- 
Imj^, whldtif 9^X0 hurt^ tejidency, went far 
l»^ond ik^ pauppblet now in question. $uc1^ 
fpa such t^e| were said to have been illegally 
mposed, and the copstitutiop held out as ^ 
foere con:g)irac7 of the rich aghast tlt^e poor : 
]r?t tne punisrument infllcte4 was thref mooter 
ipamisoxunent to one ^f th^ip, an^ six moiitlif 
to the otli^er. There lyere ^^orse cf|^es in 1793. 
|n one, I pean t|i^t of Norton a^xd Anderspn,^ 
^t jm proved that persons who were pieinbers 
at the society of tl^ Friends of the People 
bad gone iRto the cs^f — insisted that several 
ipf the ^oldieri should j[oin the society — and 
giveuyaf a tqast, George the third ^n4 lastf 
gnd aap)^a^ou to a)l crqwped heads ^ yet, 
ifpan ^cl^ Verdict qfcpnyiction, nine months' 
imprisonment, oi^Iy, ^aj in£icted« Twp qa^es 
occi|rrie^ in 1802. In oue of them, under very 
gfpss ciicumstaJDces, for the man y[as a soldier, 
4i|d had said he was sorry the king was not 
k|iot, and tha^ l^fi could sc^ his neart^s l>Iop4 
|)fi^*^aybnet| th^ punishpient intficted was 
<^ ino^t)^*s' itQpnsQppp^ot^ and banishineni 
nim ^cojtUnd for two years. The fi^er ^M 
^ c^ q( jpi^ J^firjey (I m sorry that should 
batf^ Imn tiie naine^ who, for wishing de- 
Hfractipi^ to ^ipg, que^n, and royal family, 
^ffttef^ fhx^ jpontKs' imptisdQment. 

' I liave gttoted these casef to show, that ^ven 
il^'tifQ^ ffjien gfpa( rlgojir ^vas jfiecesaary, 
fl^^f fipch wor^ than th^ present werf 
^tmieptiy vieif ^ j j^^ ^ say^ considering that 
we fiaod ppw iQ ▼ery difierent times, and 
||ij^ ^ P^PJQ jf ^[ppainocV ha4 confessedly 
no miction of holding ponventipnf composed 
0f«e!e^(e^irofiiirariops quarters, or of pro- 
Ip^ljpiiiig s^diiioii in apy w;^y, but were hungry 
aiiimtf, Vho Qi^Iy m^t op one occasion to pe- 
titioQ for something, they knew not what, which 
th^ tho^pl^t ^ap)^ i^ord them relief, and 
Bpver ^ar^9nred any purpose of exciti;ig or 
fjmf m ^ebeUioo, but continued to prosecute 
lAfsir yi^f^ by ^ onstUutioA^ pieans ; can you 
itmic^^ that if the paoiie ^riot^s cases which 
{'hay^ bpfD con^djeriug i]5ceived such sjigjit 
m^ce, thii present case ^buld, eveji then, 
iaf e been ^shongbt worthy of anv punishpaent 
a 9^ pr th^ ^jiy iJ^e^^irtber shou)d p/p^ oe 
j^m^ than ^^mg'.tfe ^2^^\s Ifoipe a jiftle 

M«w^l?i*h^, ' 9fff Tj^'^T %^*fned,' to hp 
jn<>fe cautib^ on jspy Ifilur^ occa^oin T 

t ?low. ^. ^. tf, f. 



L119 



In urging this to you, I think I may refef 
to an authority wlach cannot be either de- 
spised or avoided — I mean the authority of 
the wfaol/e kingdom, of the whole law, of the 
whole Q^jesty and power of the king, ministers, 
judges, and legislature 6(^ England— of that 
country which has had the longest experience 
of freedom, and has learned most thorough])^ 
by that happy experience now little real dange^ 
there is in the aisconteiits, or even the occa« 
liohal violence of a free people. There, it 
would appear, (hey are not so easily alarmeq 
—not so easily frightened at words, or so apt 
to suppose that the constitution can be brougui 
into hazai'd by a fi^w intemperate expressions. 
I 4^0)^^ therefore, the example of England as 
it stapos at this presept moment. Will anv 
one say, that what passed at Kilmarnock win 
bear any comparison,' fn point of indec^iig[ 
and indecorum, to what is notoriously passing 
in England ^very hour, and under the imme- 
diate observation of the judges and of parlia^ 
meot. The orations of Bunt — the publication! 
of pobbett and oth^s— the meetings ip Spa^ 
(elds and Palace-yard, are all, up to tnis 
hour, unchecked and unpunished — aod are 
met only by ridicule and precaution. Ip the 
Eovf 1 Kxcoange, at the doors of the l>ouses 0^ 

{)arliament, at the gates of the psdace, pub- 
ications are opeply sold — ^oot 400 copies of 
dull speeches, out hundreds of thousands of 
^aily and weekly effusions, containing, every 
one of the(p, mutter far wors^ than what is 
found in'tljis publication. I am sure no 006 
can look into them, without being satisfied 
that they contain strong excitements to dis- 
content, and (l^at their authors are fKontioually 
^f^orking upon the feelings of the country ; yef 
they are still holding forUk their doc^inef 
without danger of interfereirce.' 

See, then, what is the course, that all the wis- 
dom in council, and policy of government, i^ 
that land of freedom have held? What is the 
course they htfve pursued with regard to thct 
portion of the people with whom originated 
apy disorder that exists in the country, and the 
people to whom indeed the disorders are stiu 
connned ? Notwithis^nding ' the situation of 
England for the last six months, this is (hejir^ 
and the only trial which the present aisturbed 
state of the countiy has produced. Really, t 
should not have expected to find the first trial 
in this country/ They that are whole need not 
a physician, 'fhere has been breaking of frames 
in many counties in England for eighteeti 
months ; and y^t his majesty's governmisnt have 
a merciful reluctance, and ^re slow to call the 
people to account even for those great excess^ 
while there is any reason to t^ink that they 
tave been' pix)duced chiefly by tpeir misery. 
^p^ If ith regard tp fiip pplijtical commotions ip 
th,9 j(netrop6li^, they kno^ that a check to ihe 
'jpint of freedom oughj' pof lo be giv^p 
wit^<?yl ;ie;ces^ityiTr-jtTift the presp^ tuipults 



tavp jyqt fgrj^^j^'qpjijnucli from wickedpess <Jf 
^eart, a^ frpjp the 'p^essuVe of ipise,ry ;— an4 
j^itj^ > ga^xpal ijolic^tuge, t^ey J^opjt watchftilly 



ii9l 



57 GEORGE III. 



■'Trial ofAUxander McLaren 



C120 



and corapassionalely upon tlie people as if they ; gemm of their countrymen is so apt to hurry 



.■were in the delirium of a fever ; — and they spare 
them as deluded and mistaken only for a season. 
That is the tone and temper in which the equal 
justice of England is dealt, and sure I am it is 
admirable, when compared with that which 
would lay every newspaper open to prosecution^ 
and stifle the voice of freedom. Nothing but 
extreme necessity and immediate danger can 
justify the rearing up state prosecutions.. Ac- 
cording to the example of England, we should 
be slow to punish the people. In England, 
much more has taken place to justify prosecu- 
tions than has yet occurred in Scotland. Looking 
at home where no riots, and no rebellion exist, 
andwhere a great mass of misery has been more 
quietly^and more soberly borne than in the sis- 
terkingdom, ^e should not be rash or hasty to 
stretch out the hand of vengeance against those 
^ whose case calls rather for compassion than pu- 
nishment. Believe roe, gentlemen, it will be 
no honour, and no glory to us, to set the exam- 
ple of severity on such an occasion ; nor will 
It redound in any way to the credit of our law 
or our juries,'that we were more sharp-sighted 
and jealous than our neighbours in weighing 
ihe rash words of our fellow citizens, at a time 
when they were suffering the extremity of dis- 
tress.' At such a season, expressions t&i// be 
.used which it is impossible to justify; and 
offences will be' committed, which will again 
disappear in seasons of prosperity. A vigilant 
police, in such a case, is all that is wanted. 
Absurd and impr6per expressions at meetings 
for petitioning parliament hardly deserve no- 
tice ; and a facility of obtaining convictions for 
government on trials for such offences is uni- 
rersally recognised as a mark of public servi- 
lity and degradation. It is always most easy 
for the worst governments to obtain such con- 
victions, — and from the basest people. Affec- 
tion to the constitution is planted substantially 
in the hearts of the subjects of Great Britain ; 
and it is only those governments which are 
doubtiiil of their own popularity, that are given 
to torture and catch at words, and to aggravate 
slips of temper or of tongues 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 expecta- 
tion is alive to the result of tne 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 ex- 
'umple of finding a verdict which would subject 



ihem,— especially when they find that far worse 
excesses are pardoned in England to the phleg- 
matic English, — in whom they have far less a- 
pology. * ' 

I have exhausted you and myelf, — but I have 
one word more to say. This is a case above 
all other cases fit for the decision of a jury, 
— a case in which you can expect but little as- 
sistance from the Court, and in which, I will 
venture to say, you ought to receive no iroprea* 
sionfrom 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 applica- 
tion to individuals. It is on this account alone, 
I believe, tliat in foreign lands the privilege 
of jury-trial as existing in this country is regar- 
ded as so valuable. And certainly its vuue 
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 aristocra- 
tical part of society, and to those great establish- 
ments which appear to be peculiarly threatened 
when sedition and public disturbance are ex- 
cited. 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 coun- 
try looks, — that all Britons, and all Foreigners 
look, in questions with the crown, when as head 
of the state, it demands punishment on any of 
its subjects for allecced 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 hjs 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 panels at the bar were 
actuated by seditious motives; You will judge^ 
whether in the publication of this fooli^, in- 
temperate and absurd book, there was an 
intention to excite disorder and commotion in 
the country, and that in this conduct my client 



people to punishment in the circumstances of \ was blind to his own interest, and to the evil 



these panels. Even if you think that the crime 
is doubtful, I trust you will not be disposed 
' lo lend yourselves to the over-zeal of his ma- 
iesty's professional advisei*s in this part of the 
kingdom. I say, I trustyou will not shew a 
' disposition to follow, where the keen and jea- 
lous eyes of persons in authority may spy out 
matters of offence'; and that Scotsmen will not 
be forward to construe into guilt those excesses 
of speech into which they know that the/emif 



consequences to his country. The essence of 
the crime, I can never too often repeat, con- 
sists in the intention; and in judging of this 
you will take all the cii^umstances and eM the 
acts of the parties into your view. In a sea- 
son of great distress, one single meeting was 
held for petitioning the Legislature, — a pur- 
pose which redeems every thing that might 
nave been amiss in their proceedings. No- 
thing but a petition to Pariiament was, in fact. 



121J 



Stid fkomat Bairdfor Sedition. 



A.D. mi. 



tids 



the result of the meetingj-^anil 400 copies 
t>aly of these foolish speeches vere printed. 
No steps were taken to promote disorder, but 
the most entire tranquillity then and after- 
'wards prevailed. 

When I think of these things, I can have 

BO doubt at all of the issue of this trial. Yon 

cannot but perceive that the panels have not 

been proved guilty of sedition ; for they have 

oot been proved to have said or done any thing 

wrickedly and felotuousfy, or for the purpote of 

exciting tumult and disorder in the country. 

Their general conduct and character render 

such an imputation in the highest degree im« 

-probable; and the particular facts Which have 

been proved are so far from supporting it, 

that, when taken all together, they are obviously 

inconsistent with its truth. 

SUVMING-UP. 

Lord Justice C2erft.~Gentlemen of the Jury; 
Although you have heard from the learned 
Omnselwho has just now addressed you, 
. with infinite ability, on the part of one of the 
panels, 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 de- 
-taining you for some portion of time, notwith- 
standing the fatiguing duty you have had to 
' perform. 

In consequencerof the alteration of the' law 
' relative to proceedings in this Court, it is no 
longer neeessary to take down the evidence in 
* writing,* but it is still the duly of the pre- 
siding' Judge to sum up that evidence to the 
Jury who are to decide upon it; and notwith- 
' standing what the learned gentleman said, 
'(and' I 'am not disposed to find fault with his 
remark), I shall state for your consideration, 
the nature of the charge and the evidence ex- 
hibited against the prisoners at the bar. But 
even if I were not enjoined by the pbsitivc 
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 pro- 
vincej, 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, my view of the. 
law of this case, and then to leave it to you to 
do your duty, as I shall now endeavour to do 
nrae. 

The Indictment exhibited against the pri- 
soners at' the bar, contains in the major pro- 
position, a general chairge of sedition, and in 
the minor you have the narrative of the fietcty 



• Vide Stat. 23 Geo. III. c. 45, made per- 
petual by Stat. 27 Geo. III. c. 18. 



I in reference to whic% the public prosecutor 
subsumes, that they are both, or one or other 
of them, guilty of the crime of seditidn, 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 of Kilmamock« 
a speech, which the public prosecutor states to 
have been of a seditious nature, containing 
a number of inflammatory remarks and asseiv- 
tions, calculated to degrade and bring into 
contempt the Government and Legislature, 
and to withdraw therefrom the confidence and 
affections of the people, 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 pur- 
pose of its being printed. And with regard 
to the other prisoner, it is stated, that he pre- 
pared for the press an account of the proceed* 
mgs at the meeting, which account containt 
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 vou, upob these facts 
and that law, to consider whether there is 
ground for the conclusion of the public pro- 
secutor. 

It ma^ 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 what* 
ever. I do not know that there is any founda- 
tion, in point of fact, for the supposition which 
was mentioned, that the author I allude to 
had ever been suspected of having any par- 
ticular bias in giving a view of this depart- 
ment of the law. I never before heard that 
such a notion existed in the minds of the peo- 
ple. Bnt sure 1 am, if they who read his 
book look to the authorities and decisions to 
whicli he refers, they will be most decidedly 
of opinion, that he has expounded the law ia 
the most clear, able, and satisfactory manner. 
Mr. Hume, the author to whom I allude, gives 
this general description of the crime of sedi- 
tion*:' ** I had formerly^ in drawing the line 
between sedition and leasing-making, a proper 
occasion to explain the general notion of uiis 
offence, and I shall not now attempt any fnr^ 
ther 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 



•9^ 



• Vol. ii. p. 484. 



193] ^ GiORQE HI. 



TrSfitqf4hevi4er M'^tarm 



ClH 



ve suited vdA ioteo^eA: to dwtiiri) die tra^r , eottposHiaD is, ipeseralljrff that it is of an iof 



•iiiltity of (h« sjtaCs, for tlie paFpo9« of pro* 
jttoing: piilHie Uooble or oommotipq, aad 
moTiDg his Majesty's sitbje«|0 to tfa^ 4i<liK9b 
i«Mitan«Q» Of subvanioft of tibte ealabUshed 
goaaniiaent and Uws^ of sattlod temo and 
flfdorof tW0gi, 

>^U»dot ^s deseripdoift woald fall a woilf: 
^mcb a« it haft boon i^esarvod finr tba ifiicked* 
nass. of tha fireseot age to produae)* whicb 
finQM. teatoli tJbai all aftonaro^y and hereditary 
iiiilk» or all dancal dig)ailie« and astablisl^ 
flMBts of r^fioB) are an abuse aad mwrp- 
ationi eootrary to reason and jnstieei and 
VAftt to b^ aoyloQgef saifered or contintied. 
Or» tbougb ilie pieoa abouW not set out upoa 
ia bfoad a principle at tbis» if it argue (ia 
ttOOMMMi vilb the manv oomposilions which 
baiFo lately been pressed upon the world) that 
1km po^er of the king is oTeiYrown, and 
tn^il^ (d miff k$$ard, to be retrenched ; or that 
iba CMUIK>ns are a more nominal and pre- 
landed rapresentative of the people, whose 
laws are entitled to no manner of regard; or 
that the whole state is MX of corruption, and 
tbai the people ought to take tba office of re- 
imaiaf it upon ihentselyes. All axhortations 
of this l|ind, whetbar any eommotiop follow on 
them or not (for if any do fpUow, then it wiU 
d^and on tbedegveOf fashion, and immediate 
ooeaston of that dtsoirbanca. whether it is not 
treason in those who partake of it), are un- 
dottbtad acts of aeditioay beiag oaloulated and 
employed for iba direct purpose of loosening 
$b» hold whicb thaOovemman^ has of the opi?- 
siions and alfesiioaa of thfi people, and Ibua 
pveparing tbam for aeto of rasistftooo or 

aggression.*' 

. SoTeflal of the jostaooes wbi«h ba i^vep of 
Ibii «nme vvwe alraady read to you, and I 
*aed not repeat tbi&m. Bat J refer to anotbar 
■assage further oa, in whish tha fmthor ooi^ 
knH and ilkiatftiat bis opinion. ^'Tbf lai^ 
aon ia aU these eases is the aaiae* The oriana 
#f aadiiian, tbensfore, Has ia tba stirrifig of 
anob hnvoiirs mt naturally tend to ohange apd 
eaas m e li os in iha stale. $o pear, indaed, is 
Hia alUanoe betwaan sediiioa aad treason^ that 
i£f instead of sowing the seed^ of a hostile dis- 
position lia the GoTemiaent, or preparing e^ 
materials m in tkne may kindle into a A^me, 
She offender abatt seek the aame object jpaore 
faBSBgdwaely, by a direct end dtifioite exb^- 
atian to aha fe»ple to rise at ibat particular 
jeaaoo ^asid f oniyaActvre, as ad^ant^ao^s for 
^Mwogtbairiends; this measure in like ipan- 
«K, aa a oaosidtafeioa to hvf war> -seems tp 
liatiaitiivf kH than mo aot for ^o«ipaBsiiig M^e 
4eash of tiie ktiw, beiagadofidad and laa- 
MM sftep ilolvaiidM the doing of <that fvbiph 
^siinotrbe id^ne witbqnt tba plai9 d^oftor of 
iba Soaaaetgn'a Mie^"** 

Agftta^sn ftpeabing of a dialiaotitw Vrhioh 
Jhaabtvdayibatti'gfauiead.-a^botaiieaa aeiM a«ji 
Mid^edi&^a;' Mr. fiama eiipiiBSMS bimself Jin 
tfw se wo idsl: ^i[ idl-lhat can be «ttddf -the 

♦ Vol. ii, p. 4d4. t Ibid.^p. 4W. 



jSammatory kind ; such as by the principles it 
inculcates, and the obloquy it throws out oa 
tbe mamagepi^ pf public ^airs, ^nds t|0 thf 
infusion of jealousy and discontent among tb^ 
inultitude; but without - prgiceedi^g to any 
petrosal of a plan, or set of active^ ope^on^ 
as grounded upon these p^ciples, and fit 19 
be follow^ in the exis^ng state of thiosa; 
this may with propriety be referi;ad to too 
head o( verbal sedition. It was for a co^npOr 
sitioa qf this, character that Robertson and 
3erry* were convicted, as has been meatione^l 
and William Stewartf was outlawed upon a 
charge of the like nature, on the 11th March, 
1793.*' So that you see it most distinctly 
Stated, tbat words, if of an inflamqiatoqr nv 
ture, though not followed by active operauoo^ 
will amount to verbal sedition. 
1^ I shall content myself with reading to yon one 
other passage, without offering a word of my 
own upon the subject. Thijf passage refers to 
the distinction between the crime of ^editiop 
and that of leasing-making, which is still recog- 
nised in our law, '' Bi^t sedition is a crime of 
afar wider and more various de^cripiivn, aa 
wqll as of adeepercbaraoter, which may aq^a^ 
ly ba oommitted in relation to any of ta^ oth^ 
powers, orders, or parts pf the public consti- 
tution of the land, or to any class or division 
of the society of its inhabitants, and withooA 
the use of special calumnies or slanders against 
the king, or any other individual ; as by the 
forming of combinations, the taking of reso- 
lutions, the circulation of doctrines and opiu* 
tops, or, in general, the pursuit of any coarse 
qfmetffwra and^vf^ioa^ such as dirfietbr tap4* 
to r^stan^e of the legis^atvira or estfiblisbafl 
govemmant, or to the aew-modeUiag fif tba 
st^te. without the ai|tbority of lav* |fo inaee- 
tiv^, therefore, bow violent soever, og^dnal 
avooaicby ipraieral,— np abuse, the n^oft oat- 
rageoos, of the Bri^b oonstitution^-r-iio pr^ 
ceediogs, though ever w^ plainly tenoiag to 
abolish tNt vanerable sy8teD^ ^d set up a 
pair form of government in its room, wonld 
jOftify a charge of leasingrmaking, Becsuisf i 
iboi^ all iovolving the state and office 0^ tbe 
]pfi% «s part of the constitution, such pr^ 
jai[^ are ^veiled against the yho)e svstea, 
^d are pot amoved out of special groove ^ 
tbe pria^ upon the throne, but spring frojpa a 
d^p^ ^d more roalignai?it prii^ciple, as wa}l 
jss empk^ pnore direct and afore extensive 
speans ihifk that of mere scolder of tbe per^o^ 
and condyM^t of tjve king. Thu^ ^edition if ^ 
prppsr orine against the atate, and balds the 
^a^pj^p aftar tr^asott, to which )^ fS p^y 
9Ali^, s^ ivbich it an ofWn but ]^ ji 
interval, precede. The other is a persca^l 
J^fe^mt ^^ 'l^bfd injury o&ned \t> *tt]ie fiing 
^4 ?9rhieh ^f laff i<msi<l«» W »? W^^ 
IPQ^serioitts Mrtt -tMm pijber ^jiyiesof V^ 
riiis, partly by .xpayon ^i ^be j"*^ r^ggg^ it t^ 

♦^JHow,bIod.St..Tf...79^ ' * 
t.?.Il9W.J«p4.fit.'Sr,?i5- 



1051 



and Thomat Snirifor Sedition* 



A.D. 1817. 



MSB 



to iliB't^ifife *^ triliqwllfy of Ui9 imA of 
the state, ilie nodt vti^a^atp^mm in the Imvd ; 
luid perthr hy reason of the poMible evil m- 
floence of sach an example on the affections 
ted di^[MMitions of his sahjeets." 

HRfing tbnsexplainedy frdm what I oertainfy 
ttketo be nndoaMed aQthority, what oonsti- 
totes sedition, I have to stete to you what is 
eqaa^' dear in point of law, and what it is of 
essen&l importanee you sboaUl keep hi f iew, 
and upon which iMth sides of the bar aie 
agieed, — that it must be held as the landa- 
mental fnle of your conduct in 4eeiditt|^ this 
ease, thst^by the hew of ScoUatHl your duty is 
not limited to a tonsidetation of the iaots 
Inefelr, but Unt it is- your protince to take 
info view the naOrre ef die sj^eecbes and wn- 
tittgeomplBined of, as well as the hAi of poh- 
lis&^^aUd I state to you in the words used 
hy*a dj!ifhi|liished Jvkdge m-a former ease of 
a&ilioB, though not etfadtly parallel to the 
fMesenl, that it is not only yimr right and pri- 
vilege, lUit Jfour unquestionable duty, to say 
^Mietfier seditioa has biete committed or not.* 

Hiving paved the iray 'to ttie cottsideration -of 
tile qo^s&n before us, Weare first to consider 
fvhat is the evidence irhieh fte prbseontor^itt 
i^aced astoM'Lartmhaviagdehvcffedmspcaah 
Itetainhi^ passai^ suchas these set forth in- the 
MdEtaoent. You-vrill teooHBOt^tiiatyoa had 
BMBght before yeu Mr. Andftw Finnte, k 
iMhiess on the part of the 'Cr##n, blit who, 
In reAMncetb «e whole of the transactions 
indter ^saasW^iatidn, w«as MiBBetf, ^toweeitain 
exteMy a pikty concerned. He was a menp> 
1»er of the coiMnittee ttiat -prepared mttjltan for 
the ttiBefingy^as himself pnteent-at' the • mfsofr- 
fagy-atfd was-hfterwardsfselected^ij take a« lead 
in the si£boeq«eDt pMeeedings. '¥ett'«ie se 
judge eflfis ^^tidenGe,*^hkh he ^Kj^pcafod lo 
give hi m-fiUr, open, ted 'Mndidmanaier. I 
kee no «hfll6tion to^fhe wai|;ht of his etiteMe. 
Iieaays,flifttheiswot«hle to iptek diMMRitly 
is tolhe^w%ole of lil^fiiveii^epeeoh, bnt 4bait 
to4he litter pen of it he did pay piiaieilir 
Mtea^ioii. 'lie ii«m« (balhtf 'heardhhttdiAHer 
lhese-^M>iiAs: «We>WiU ftr^^'^^^'let ns lay, 
eurpetici0br^lfthe1hM:^f-lh#«hrMa, who»e 
«ts tfor angttsrptinee, whoM<9enetous mme 
irin ifi^lhse his ear to the eriesof-Ms people, 
which he-is botmd to do by the eoliftimtioflal 
iiws ef Iris eountiy ; and we are thereby boofid 
to give him our allegiance : but if he shoidd be 
so infotdated as to torn a deaf ear to the gene- 
ral cries," or," voice of his people, to hell- with 
eur attef^anGe." This is the whole of the 
passage as -for as the 'witness reeolleots. It 
was ^ the close of" the speech these words 
ivere used. He stafe^, that the'Svoids^ ** And 
we aie ihenhy boond to give him-eur aMegi- 
aifeee ; bat if he should beeo infos«aied'«s to 
turn a'deaf ear to the geneMd eries ^' ot ^voioe 
V9 h^^jMOple^'^and not '^jSiifeMeo," »being 
tt|i #oitis soi«««pieDyy melted in theiidieiment. 



•*HM>>*«*^i>ip> 



'^ See Lord Ahetvwmby's sanmimg^p in 
«he ease of Fyshe Pahie^«a^e VoU 9. p. 31^7. 



preeeded these words'' to ImU «dtb mr afl^ 
anoe." He is positive ^and was equally so 
upon hb cross oaanrination) with legasd to 
what be heard McLaren say. tie states^ that 
the words," to hell wadi onr allegiance^'* 
struck him as strong, and that thouffh be did 
ix)t take any noees of them, he consMMred tlMan 
so strong that he can swear to diem. Xon 
will therefore coasider as far as this witneas 
'goes, whether you have not a deposition. tQ>the 
very words. It vriil be for vou to jndge 
"whether the exact words cbaigta-An Iheindiai- 
ioaent have been proved er not, or whether, te 
essential parts of the passage ham boan 
proved. When a very elase affiniSy is. ■»• 
sCnictedy it is for lyou la coBsiisr-whatis.eiia 
foir import. 

Another vritnessvras eaUedon the pact ieff 
the proseeulion, iwho, tbongb he.givBs ibat an 
imperfodt aecovnt of the apaech in ganaral, 
does swear to what is desersiag of attanliesi. 
He remembers.partof the spea^ towaads .the 
end, " to hell vnth," or " for. ailegsance." .Ha 
said, the words, "if lie tamed < aideaf Mr-^ia 
the voice of his people,'' wwefallewiBd bylhe 
«spieesions I have just cited about aUegianee, 
This as the evideace. of Meina, and you mall 
consider wiMther it dees not coBrobonato. Urn 
special aecmint srhich lir. Fassiieigises ctf 
the. speech he bemd :M<La(en delivet. tfiiet 
attempt waj made io examine .f Innie as e^ 
the eitnatioo where he stood, at the. 
or whether -^se avas any jiosse or 
ef hearing. 

The question ^as-to theepaeeh avtuaUljKidi^ 
livesad doesnot seat here,.beaaB0e -yen will 
•find it was admitted by M'Laaen haBisBlf,sta 
his-deahiration bsfose the sheriff, that he dsA 
give in a naaaseaipt contaamnghis speaeh Jia 
the .oammittee to he.pcioled, aiid.rthBi the 
prmtedaeconnt^^ iaiieas>ahontwhatahejda4d»> 
naaaaadmi dmtabore oneaaiia,>;e insfH wil ia 
said abaitt'the middieof ihe seaaMi:wage.ns. 
to ai|egianoe,:whiah the derUwn»i:thmhs;he 
dadsatdehseritDithe naoadsias. smamsaJ in 
ihepahiication.*' Yea have, beeidas thiai^Mtlm 
aeiiwsce . of '4aihar . fwitnasses. In paslieulaK,. 
temsonswean,' that the apneahms raad^oecr 
in *iiM4Bett's preenoa, and that Mr« Baacd^ 
•the other prisoner, made an aHeraftion onit:ui 
penial; Ohat he inserted words,. makingrthe 
speech. oonfotronble to the piinSed aceonnt lof 
it hare before- us. So that this ehroamatanee 
of the MS. having been prodnced, read over 
-and levised, in .the presence of these men, and 
en' alteration being made by Baird, withofSfc 
any objection, as Samson swears, having been 
made by M'Laren,. ahews that> M'Laren ap- 
-proeed.ofohe akamtk>D,«rat least 4hat he did 
'ttotoppose it; andthis, withiheothetwviiam:% 
rgoeswto 'Shew 'what'-was^the tmejsMiitnie .of 
ithe spaeeb/deisvemdjuponrthat eeaasiqn. 

You have i to cempare . the - paimad f^mpoiA 
•vittth^ tbaeee i jiHSOBl simdiaard by EinniatwUch 
eameiavit of^ihffLaren'ai- month. tU jmvu thiak 
it your duty ta^ake the prinied etateBMiit as 
the true account of what was said," But should 



1*7] 



£7 GEORGE IIL 



Trial <}f AletaHder M'haten, 



[138 



he be 80 infatuated as to turn a dekf ear to 
their just petition, he has forfeited that allegi- 
ance; yes, my fellow townsmen, in such a 
case, to— —with • their allegiance;" you y^ill 
keep in viewj that McLaren gave in the 
manuscript of his speech to be printed, and 
vras present when Baird inserted these words ; 
and you will decide for yourselves^ whether 
there -is any doubt that he permitted that, 
which he took no steps to prevent. But again 
if you take into view the words as given by a 
-respectable witness, and confirmed, to a cer- 
tain extent, by another witness, and admitted 
by the prisoner himself to Mr. Johnstone, yon 
will consider whether there is any rational 
ground, for. doubt. as to the import of the 
passage of the speech which M'l^ren delivered 
■aitng beieea sufficiently established. 

Next, with regard to Mr. Baird, the case is 
of a different description as to the .facts, for 
lie is not alleged to nave made any speech 9X 
all. The charge against him is, that he . was 
one of those who printed and published a 
statement of those proceedings, containing not 
<iBly McLaren's, speech, but those of others 
^fiiich are founded on as being of a seditious 
and inflammatory nature.. It does appear in 
«v^deDoe that Mr. Baird was at meetings of the 
eonimittee, bodi before and after the public 
meeting ; and when the decision was taken as 
4» printing and publishing the proceedings he 
was present. It has no doubt been proved, 
<Mi ills part, that he was one of those whb did 
oppose in the committee the printing of the 
|iatsage in McLaren's speech, but that his 
olgection was overruled ; and had Mr. Baird's 
case rested here, and had the public prosecu- 
tor endeavoured to implicate him in the pub- 
lication, by his merely being present at the 
public meeting, it would have been difficult 
indeed to have persuaded any jury to have 
found a verdict affainst him. But his conduct 
was different ; for, after his objection had 
been overruled, he superintended the publi- 
cation ; .and it is folly proved* that he went 
twice or three times to the printingK>ffice with 
Mr. Andrew, who was employed in revising 
the p'roof sheets, and that, upon one , of these 
occasions he suggested the correction of i a 
grammatical error. This evidence will pro- 
bably be sufficient to satisfy you that Mr. Baird 
did take a concern in the printing and pub- 
lishing of what is complained of, even after he 
stated objections to one passage. His con- 
duct, therefore, at tliis penod, makes. him re- 
sponsible, even if the evidence . stopt there ; 
Imt has it not also appeared in evidence, that 
Crawford holds him responsible for the payment 
of the printer's account? and were not many co- 
pies of the pamphlet sold at his shop ? Mr. Finnie 
swore that Mr. Baird got some copies from.him, 
and expressed surprise that the witness had 
not got quit of all his copies. Mr. Baird is not 
a bookseller, but a grocer, and disposed of. the 
copies in hiflr shop ; one of which copies, it 
has bean proVed was^ thef ^ bought by Htigh 
Wilson. . . -w 



. Having stated to you what appears to me to 
be the. result of the eYidence in these particulars 
as to the* facts of delivering and publishing the 
speeches complained of in> this indictmentj 
there still remains a much more important 
question for your decision, which it is your 
entire province to decide on, but with respect 
to which, it b my duty to submit a few obser-* 
vations to you. You have already had an op- 
portunity of hearing, that on the face of this in- 
dictment, as the matters are there disclosed 
•and undertaken to be proved, the court con- 
sidered the charge relevant, and fit to be sub- 
mitted to a jury ; and now that, the evideoca 
has been led, .and we have the whole circum- 
stances investigated, I have no difficulty in 
stating, that notwithstanding all that I have 
listened. to in the very learned, able, and in- 
genious criticisms, both on M'l^ren's speech 
and on the passages, of the publication which 
have been rounded on, I am still of opinion 
that there is matter of a seditious description. 
It wouljl be. most improper, however, on my 
part to. hold out to you that I think this a case 
of sedition of a most atrocious or aggravated 
description. That would be an erroneous im-^ 
pression. I have to observe, also, that I am 
far from thinking it proper, in the case you are 
now trying, to refer to other cases which are 
notpanUlelto it in the focts. . But in reference 
to the prisoners at the bar, it does appear to 
me, ana to the rest of the judges, to be clear, 
that there is on .the face of the speech of 
McLaren, and in the different passages which 
have.been referred to, as well as in the context 
of the publication, matter of a seditious nature. 
How far that seditious matter has existence ia 
point of fact, or is affected by the circumstances 
in evidence, or the remarks made on it, you, 
however are to decide. In judging of this, 
you are called upon to look to the intentioQ 
imputed to the parties ; and I concur with the 
learned gentleman in thinking, that it is the 
part of the public prosecutor to establish the 
criminal tendency of this alleged seditious 
publication. Criminal intention, or Uiat the 
facts were committed wickedly and feloniously 
as charged, constitutes the very essence of the 
crime. You must be satisfied, that the pro- 
ceeding was not only seditious in itself, but 
that there was the criminal purpose in the 
speeches and publication which is charged ia 
the indictment. I do apprehend, that when a 
jury, is called upon to decide upon tlie import 
of a speech or of a publication, ,it is their 
bounden duty to put upon that speech and 
publication a fair and even a mild interpre- 
tation. They are not called upon to stretch 
matters, or to endeavour to find out a far- 
fetched meaning in words. If words are of 
4m. ambiguous nature, the mildest construction 
of them, is to be adopted; but, on the other 
^hand, reason, requires that a sound, plain, hpr 
'nest meaning be. given to language. . It Is niot 
disputed by the public prosecutor (for he him- 
.self, in some me^ui^ followed such a course), 
that it » Qe.osQ^ary to Ipok to the^ context,^ ami 



H0I 



mud fhMm Bmrdjbr SMOtn^ 



A. a. isir. 



[1S» 



BolV> laitt Mtf » ieBCenoa of t spenb 4it y«b- 
liealion, bvi to give fiur play to the aconsed, 
bf rofimijBg to what pioccdaf and 4o wfaal 
IdHois. It ii yov Inmness 4o take Ihe.docii* 
aeots into jour own handsy'and looking to the 
wkfi^ coDtcst to draar the eftochifion iHiether 
tlpeve is aeditioa er not. 

It if laMy poiwiWe al ftis late bow to go 
tiiroofb every erne of Aa passages whidi are 
tended oA» Mid fiu less through the wbole 
nohlieation ; Wt I beg leare to say, in re- 
ivence fo the speech of M'lAien, that there do 
sppear to ne a asost improper atyle end tone 
inte^boleof ii. He refeit to tiansacUoas 
si » wmj distaol period, of whioh no sober- 
SSinrded n^n ironld wish to revire or obtwde 
ft^ recoUestiae, as affording any nde of eon- 
duet fisr the people of this country^ in reference 
|o their p ie s o otsiiyition. From th^ beginning 
^f the speechy in vpbich complaints axe made 
of the oppressions under which the country iM 
iabo^iingy to the conclusion, in which reference 
is nade to the Pdnce B«geat, there is a ce- 
mr^ style of inflammatory dedamation. Nor 
was this effusion unpremeditated, for notes of 
fhe speech were inepared by .him at an earlier 
or later penod oewire the meeting. Without 
going into particulars, Im there is a lone and 
tagwsge in this speech which are strongly in* 
IbMnm^tCiy, and tending to eidte in the people 
disconrgtf and disaffection agiinst 4ie gwexn* 
pnau md legjMatnie. tX this it is, however, 
Youjr iMtovittce to judge. I have no difficulty 
91 saying that liie lai^guage appears .to me not 
to be of a desenption whsch can be ssfionciled 
10 the single oloect of petitioning. 

The passage uppa woich the most ipipoetant 
oomnsents. hiore teen made is thai with regard 
to tho petition to Ihe Pkince Begent, end the 
Mseqjaenos of his not Ustoning.to the just pe-^ 
titioiBs ol the people. The passage is in these 
epofde : ^Lat us lay .our petitions at the foot 
of the throne* where sits oor angust prince, 
jvhoio gfaoions natooe snli incline his eir to 
liaten tp die cries of bis j>eople, vfiuoh he is 
iMomad to .do by the laws of the oountry : But, 
ebooldhe besoinfatuatedastotom a deaf ear to 
fbAr just petitiqp» he has fosf^ited their alio* 
^ance. Yes, «j ieUow-townsmen, in ^uch a 
case, to hell wijth.oor -aUegiance." Take the 
c xpn essions as given either in the pahlication, 
er as in ari^eace by 4he witnesses, and say 
is yonr oplnicn as fo this part of the 



A great deal of most able and ingenious 
criticism lias been bestowed upon this passage, 
fmd mA it :the oeoastol for the panel giappied 
to abettttmoat, pcsceiving at of v^al iippoitaaoe 
ee4»eia*eiestofhis€li«Dt. ' He jvas bordering 
«pon wmf diiieafir gronnd, indeed, in ihe de- 
mice fdach hsimainlaiiied. But, after all yen 
fcsraie boad^on thesnlQeot, yon eie to oonsider, 
^ihethtf, nQtorithstanding she forouiable »- 
marira maile in jnlssia re ito ahe Priaee Eqpsnt, 
wawifk 1. adapt doapyaar in Aei^wt partjofthe 
wsafa ipqneetiwi,.the langua^m the fol- 
bw^Mioe instifiablai^ u Mmpfxefoaence 



to the fAtitioas of dhtf people at laige, or to the 
petition of these particnlar pecsoas. Tbe-term^- 
jnst petition, no doubt, is employed. Baft 
who M to judge of the justice ot the petition 1 
It would appear from all that passed that tho 
petitioners tnemselves were the judges. Whalf 
was said to be the alternative u this petition* 
:#as refused ?—<" To hell with aUegiance," or ' 
** our allegiance.^ I aak of you, as sensible and 
reasoaable men, whether this language does- 
liot indicate that the Speaker had tomtd a 
purpose of throwing off bis allegiance, in the 
event contemplated of a rejection of the per 
titions in question f He was to arnur himself 
against fais sovereiga, not in the ludioroiie' 
manner that Mr. JdFrey suggested, but in a 
venr different and much more' serious manner; 
and I boldly affirm, that if a single step had 
been taken, by following up the language ibim- 
employed by any overt act, it would not liaife 
been sedition, but plain and palpsifaie treaao& 
Whether the languafps thai was here usei^ 
which. It has been said, only ^presses a Tesy 
delicate principle in the ceostitutional law cif 
this country, was calculated to excite discon^ 
tent, disunion, and public disturbance, is Ihe 
question for jFonr deeision. You vrill judge 
whether the words were uttered ; ]rou will jpva 
them fair pli^ in judging of their meaainff*; 
and in the interpretation df them you will senr 
io the other parts of the speech. Inthatvfay, 
yoa will satefy your minds as to the grouads of 
the canclosion you a&ay come to, and decide se 
to the intention of the speaker, and ihe import 
of the passage. 

Yon will judae^ else, of the meaning of the 
term ** Gti^mchyf" which oocuri in the^pe e cb , 
and in different parts of this publication : yoa 
will consider' whether it alluaes to any of the 
brandies of the legislature, or must be limited 
to the persons forming the actual administr»* 
tioo. I coincide with the opinion which was 
lifted at bymybrodier on my right-hand ^ 
partieularly vrhea I oonsider the way and 
■lanner in vfhich 4he term is explained by 
another speech founded on in the mdiotmenl. 
^* We have these twenty-Ave yeats been oo»- 
demned to incessant and unparalleled slavery 
by a usurped Oligarbhy, who pretend to be oar 
guardians and repvesenutives, while, in foot, 
they are nothing nut our inflesible end detei^ 
mined enemies.'* I think it is impossible, by 
any interpretation, to suppose that this has re- 
ierenee to ministen. It obviously has ^eio- 
rence to the House of Commons, one of the 
branches of the legislature. When they com- 
platn of the oppression under which the ooaa 
tiy labours, Ib^ have reference to the Com^ 
moas House of' Parliament. I think the same 
iatespretation is applicable to M'Laren^s 
apeecb. You are to consider, then, whether 
the House of Commons, as now constituted, is 
meant to be designated by the ^ usuiped Oli- 
aardiy, who pretend to be oar guardians and 
Wpiesentatiyes, while in fact, they are nothing 



-5--* 



• Le^aestoar«id»p. W. 



ISlJ ^7 GGORGlB in. 



Trial qfAi$mm(ler M^LofW 



CHS 



but our ioflezibte and .determined enemies^" 
nlid who have these twenty-five years con- 
demned the country to incessant and unpa- 
ralleled slavery; and you are to determine, 
whether 9 by propagating such opinions in a 
speech to an assemblage of 4000 persons, and 
afterwards introducing them in a pamphlet 
which was sold and circulated in the country, 
the paneb were not guilty of sedition. 1 
tubmit to you, that if there is any meaning in 
words, this was degrading the House of Com* 
motts^— casting on them the imputation of 
having enslaved- the country for the twenty- 
five preceding years, and attributing to them 
all the misery which the coufttiy is represented 
as suffering. 

: There is another passage in the publication 
to which I think it necessary to call your at- 
tention. I mean that general statement which 
.'which was made as to the proceedings which 
iook place in the year 1793. You wiU find the 
passage in page 2, of the indictment. *' But 
let lis come nearer home. Look at the year 
1703, when the debt amounted to two hundred 
«nd eleven ipillions, and the annual taxation 
io about eighteen millions ; when liberty began 
4o rear her drooping head in the country; 
when associations were framed from one end 
.of the kingdom to another, composed of men 
eminent for their talents and virtue, to assert 
ibeir rights; when a neighbouring nation had 

i'ust thrown off a yoke wluch had become into- 
erable,.— what did the wise rulers of this 
jcountry do? Why, tiiey declared war, not 
only against the French nation, but also against 
«he fiiends of liberty at home." It has been 
;urgued, that the term, ** wise rulers," means 
the ministers for the time, and that their con- 
•duct may be discussed without blame. I con- 
jcnr in the observation, that there is no sedition 
in the oensure of administration merely as 
iservants of the crown* But the passage clearly 
applies, not only to the government of the day, 
Imt to the mtem of govemment,^ — to the legis- 
lature 'itself How can that be doubted, when 
.you observe the concluding words: "Why, 
4hey declared war not only against the 
French nation, but also against the friends 

' of liberty at home.'* Look; also, at the context. 
.The clear import of it is, that when the coun- 
try was in the awful situation described by the 
learned counsel, the government declared war 
4kgainst the liberties of the country. What 
4ook place at that time is matter of notoriety. 
,New measures were then necessarily resorted 
.10 for the salvation of this country against the 
attacks of foreign and domestic foes. King, 
.Lords and Commons, united for the purpose of 
'Securing the liberties of the country, and their 
measures are here manifestly represented under 
these words: /* They de<;^red war not only 
.against the French nation, but also against the 
•friends of liberty at hpme.? You will say, in 

^ point of fact, whether t]^e fainistry or Ui)9. whole 
legislature .were referred to in this passage, and 
whether to cirealate it was not to psopagate 

^ sedition tbrau^ottt the Miatiyt . 



- Th0re are other passages, faflio the ooiiBtda». 
tion of which I cannot now enter. I shall 
just refer to one which has been commented 
on at great length. The passage is, *' And a 
House of Commons; but the latter is cofw 
rupted ; it is decayed and worn out ; it is not 
really what it is called, — ^it is not a House of 
Commons," &c. It is said that there has been 
language used in parliament, and passages in 
petitions presented to parliament, stronger and 
more offensive in their nature, than thi« 
founded on by the public prosecutor ; and thai 
such petitions were received and hod upon the 
table of the House of Commons. Passages 
were read to you to prove this. Upon Uiis 
part of the subject I must observe, that what 
IS, or is not, tolerated by the Houses of Par- 
liament, must be foreign to our present discus- 
sion. They are the best judges of what is 
a violation of their privileges ; but this much i 
state to you, that if seditious language be used 
out of doors by persons in preparing a petition 
for parliament, even if that petition should 
embody the seditious words themselves, it 
cannot be pleaded against a charge of sedition 
that the petition has been received by parlia- 
ment. We are bound to judge of the language 
employed by the .test of law aiyd common 
sense, and by that test to determine wbetjier 
it is seditious or not. It has ' been held, again 
and again, to be no justification, in a charge 
of sedition, that language even of a more 
seditious tendency had been used in or out of 
parliament without being followed by any 
punishment — ^It is stated for these paneliB, that 
stronger language has been used in«. other 

anarters ; but the answer is, that is nothing to 
le question under consideration. If the 
language here be seditious, iV is no matter 
whether such abuses have been passed over on 
other occasions. If such petitions as thoee 
referred to had been particularly brought under 
the view of the House of Commons, I shouki 
think they must have been rejected; and it 
would, be matter of astonishment to roe, indeed, 
if petitions couched in language far short of 
what is now before us were received. • But in 
the multiplicity'of petitions presented to that 
House, some may pass without due attention. 
Perlmps very objectionable petitions do lie 
there. But if the public prosecutor proves in 
this Court the utterance and publicatien of 
seditious language, it is of no consequence 
that petition^ containing such language have 
even been received unchallenged by the House 
of Commons. 

There is a part of the defence, however, 
deserving of your serious attention. It was 
abl^ argued by Mr. Clerk, that the language 
which is here complained of, havipg been used 
in connection with the exercise of the legal 
right of petitioning the lerislature, cannot be 
considered as seditious. Uod forbid that any 
thing should be said by me hostile to the right 
of petitioning the 'House of Commons, the 
House o£ Lords,. or the' Sovereign, if the peo- 
ple are ceqiectfulin their language; for to 



133] 



mi 1%»fhm BtMJof MMte. 



A. O. 1817. 



1134 



lUte grier^Boes, aad apply fbr ledrtft, is the 
uodoobled aad miafieiiable rigbt of the salgects 
of this realm. Bat I have no difficulty in 
sayniff, that i^ under the pretence of petition* 
ing^, laogiiage of a seditious nature oe used, 
those using or publishing it must answer fbr 
the conseauences. The sacredness of the 
right which is to be canied into effect, will 
not sanction the use of unlawful means in the 
accomplishment of it; and those who come 
forwara upon such occasions must abstain 
fWmi inflammatory, seditious, or treasonable 
expressions. It would be a gross abuse of 
tite inviolable right of petitioning, if it afforded 
an opp6rtunity for every kind of language 
being uttered, however improper or reprehen- 
sible. Such never can be the result of what 
ii due to the sacred right of petitioning; and 
therefore the learned gentleman admitted that 
he did not cany his argument so &r as to say, 
that a petition mav sanction anv thing of an 
improper nature ; but he argued, that if you 
be satisfied that die object was, to petition the 
legislature, you will be disposed to make due 
alfowance for the language which may be used 
lb caning attention to grievances. To this 
extent the observation is well founded. His 
good sense must have made him perceive that 
both the law and constitution would sink 
under any other doctrine. That is the test to 
which you are to bring the matter now under 
your consideration. You are to look to' the 
whole fttcts and whold publication ; and you 
win judge whether, when the people assembled 
to prepare this petition, there was or was not 
a biameable excess in the language employed 
by them, and whether this was not greatly 
ag|;ravated by the proceedings of the meeting 
"being embodied in a publication, and circu- 
lated over the country. I have no wish, 
sentlemen, to press this case further tiian the 
mcts appear to warrant. It is your bounden 
dntr to weigh all those expressions which are 
ftirly admitted to be too strong, and even 
jndeeent; and it ik* jour province to say, 
wiiether these expressions do amount to sedi- 
tion, have a tenaency to bring into contempt 
tfie government and legislature, and to stir 
«p the people to disaffection and reheHion. 

I (certainly do most sincerely lament that 
«ar attention has been caUed to tliis case. 
This is the first trial for sedition that has 
occurred for a considerable length of time; 
aid 1 can assure the learned ffenttemen that I 
had fondly flattered myself, that even at my 
rime of hfe I should not have . again had 
occasion to apply my mind to the study of this 
part of the law. I hoped and trusted, tiiat 
after the dear exposition of the law in 1793, 
1794, and 1795, in the different prosecutions 
wha^ were then found necessary, sanctioned 
smd approved of by the unanimous voice of 
Jfae .country, I should not have been obliged 
tb consider cases of this description. But 
no it is, tibat although the situation of this 
oonntiyis so highlT prosperous and enviable 
t^ben cMiq«r«d with the rest of Euiope, it is 



in Britaita in 18t7 that we live eidtod on to 
consider such, cases. An allusion was made 
to the state of the country at the former period, 
as accounting for, and justifying the prosecu* 
rions which then took place, as well as their 
result. But the learned counsel was afterwards 
under a necessity of alluding, also, to what has 
recently happened throughout the empire at 
large. * Extraordinary and strong measures 
have been adopted, and the enactment of neir 
laws has been rendered necessary by the state of 
the times. But you are not to be affected by 
such considerations, and I would not even 
have alluded to them had they not been al- 
luded to by the counsel. You must lay aU 
considerations of this kind out of yonr view { 
and, considering this indictment as brought 
by his majesty's advocate in the discharge of 
his duty, you are to determine on the facts^ 
and say whether the panels are guilty or not 
of sedition. 

I resret extremely, in a different point of 
view, that this should be the first case brought 
before this Court, and from a county with 
which I am connected by so many ties. It 
apoears to me that both of the prisoners 
haa been men of exemplary conduct and 
ffood character. According to the evidence, 
Sf'Laren's private character had been veiy 
respectable. Nothing but what was right had 
ever been observed in his conduct. He had 
never demonstrated any thing like a disposition 
to tumult or disturbance, but was a volunteer, 
and had served as such with reputation. The 
testimony to his seneral character well de- 
serves your consideration, in judging of the 
criminal intentions of the parties, and deciding 
whether their purposes were seditious. With 
regard to Mr. Baird, again, you will concur 
with me in deeply lamenting the exhibition of 
this charge against him, atandiuf; as he has 
done in so fair a situation in society. Many 
of the witnesses, even for the crown, have 
given him a high diaracter. The inhabitants 
of Kilmarnock had some time ago appointed 
him one of their police commissioners, thus 
showing their good opinion of him. It ap- 
pears, Uiat he was a man of respectable moial 
character, and, in the opinion or the witnesses, 
attached to the eovernment and to the con- 
stitution, though he had a strong opinion of 
the propriety and^necessity of a reform in pai^ 
liament. It has been strongly affirmed for 
him, that he never had any thing further in 
contemplation upon this or any other occasion. 
With regard to both the prisoners, they were 
not known to have been ever connected with 
any other political societies. 

These are points important for your con- 
sideration in judging of the essential question 
which you are to determine as to the guilt of 
the pristaers. If, upon a careful consideratibn 
of the whole facts in tlie publication, and the 
evidence which has been adduced, you shall 
b6 of opinion that no sedition or seditious 
intention has been proved against the prisoners, 
you wiU find by your verdict .that th^ are Jiot 



ld<i 57 GEORGE III. 

guilty of the ehmge. If, Ob die otter faindy 
YOU are of opinion that these ib seditious matter 
in the speech and publication, and that the 
^arge or criminal intention imputed to them 
in the indictment has not been done away by 
the general conduct of the prisoners, you will 
not, I am confident, shrink from your duty, 
but will find them guilty of the crime of sedi- 
jdon libelled in the indictment. And, if you 
Ihink that the scales hang doubtful, and that it 
U difficult to say whether the prisoners were 
guilty or not, the former good character and 
conduct of these men are entitled to fuTouiable 
consideration. I leaye the case in your hands, 
being co'Ufident that you hare paid most par- 
ticulaar attention to all that has passed, and 
can bare no object in tiew but to return a 
eonsdentiOtts verdict. Whatever you may do, 
I trust your Yerdict will be satisfactoir to your 
4wn minds, and equally. so to die public. 



Wrmt qfJk/Mmim M^^mm 



I 



J^itU 7th, 1817. 

Lord Jtutice Clerk. — Gentlemen of the jury^ 
who is your chancellor ? 

Jwy, — ^Mr. M'Kinlay. 

[Mr* M'Kinlay ga?e the verdict into court.J 

Lord JvUiee derft. — Alexander McLaren 
and Thomas Baird, attend to the verdict of 
the juiy on your case. 

* At EdMurgh, the 6th of April, IBiTyeart. 
The above assize ha?ing inclosed, made 
choice of the said Archibald Mackinlay 
to be their chancellor, and of the said 
John Baxter to be their clerk ; and haring 
considered the criminal Indictment, raised 
at the instance of his majesty's advocate 
for his majesty's interest against Alex- 
, ander McLaren and Thomas Baird, panels, 
the interlocutor of relevancy pronounced 
thereon by the Court, the evidence ad- 
duced in proof of the indictment, and the 
e?idence adduced in exculpation, they, 

Sa plurality of voices, find Alexander 
lAren guilty of the crimes libelled in 
the indictment; and Thomas Baird, ail 
in one voice find him guilty of the crimes 
libelled in the indictment. But, in con- 
sideration of their former good character, 
unanimously recommend them both to 
* die clemency of the Court. In witness 
whereof, their Said chancellor and clerk 
have subscribed these presents, consist- 
ing of this and the preceding two pages, 
' in their names and by their appointment, 
place and date aforesaid. 

(Signed) A. Mackivlay, chancellor. 
J. Baxteb, clerk. 



Juitke Gfar^— OendeiAenof the jury, 
you are now disdiarged from the very fiitiguing 
and painful dunr irhich you have hud to per- 
form ; and I feel it incuBbent'on me to state 
to you, that the verdict which yon have f^ 
tioMd^ it^ in iu geacnd nealt, such ai I was 



10 expect vcni a iuiy,oi yuUrivspcciaoBii^^ 
after the unwearied attention you have be* 
stowed upon the whole of the trial. I am 
confident that this verdict, while it is satia* 
fiictory to your own minds, will be of gceai 
service to vour country ; and I have only to 
add, that the recommendation with which jwi 
have accompanied the verdict, and whiel^ 
under all the circumstanoes of the case, is ao 
proper, .will aieet from the X3ourt with all tha 
attention it deserves. 

Lord A&focate, — It jonly tooains for me how 
to crave the judgment of the Courf . 



Lord Jmtke Gferi:.— Have the counsel 
the prisoners any thing to say on this verdict f 

Mr. Jeffrey. — In stating to your lordships 
in one or two wOrds^ what has occurred to us 
on the verdict, I hope I am not doing more 
ihan my duty. It appears to us, that though 
its general meaning is impossible to be mis- 
taken, there is an inaccuracy in one point, 
which is worthy of consideration. Botn the 
prisoners fue charged with iedUion and wUk ne 
other erimef and the verdict has found them 
both guihy of the erima libelled, usi^g the 
plural and not the singular number. There 
may be many facts charged in the minor pro* 
position of the indictment, but there is only 
one crime charged in the major proposition ii^ 
this case ; and you are aware that the verdict 
is an answer to the major, and not to the 
minor proposition. Logical accuracv is alwaya 
requirM on these occasions, and this, there-: 
fore, is not a verdict on which the Court 
should proceed to inflict punishment. There 
is only one crime charged in the major propo^ 
sition, and the minor contains different acta 
libelled on in proof of the crime stated in the. 
major proposition, and yet the verdict finda 
the panels guilty of the crimen libelled on. I 
am now arguing to a court of law, and not to 
a court of equity. The verdict, in finding the 

S-isoners guiltv of the crknet libelled, has found, 
em guilty of something not charged against 
them. 

There is another circumstance which it is. 
my dtttv to mention, that this verdict appearal 
to be dated on Sunday. I believe this ob- 
jection has occurred in other cases, but haa. 
never hitherto been seriously argued. 

Lord Jmtice Clerk.-^Mr. Jeflfrey is only 
dotiig his duty in stating any objections that 
occurred to him. But I apprehend there is 
nothing in the objections which have been 
ofiered. The mere slip of a letter cannot be. 
considered as a substantial objection in this' 
case. Uttpo crimee had been charged indie 
major nropoeition, and the ve'Mict had oaW 
found die prisoners euilly of die enme libelled, 
it might have been difficult to say which bf the 
crimes was meant. But here thcfre can be no 
doubt of the meaning of the verdicL 

Lord E^rmnd.^1 temefnfanr in i fHii fli 
Ayr, of fNW I«\f»ri9» o* a «M^ « j(MMM 



Mtl 



■■rf Tl IiimW flii'iU Jill fclBTiiii 



A. D. in7« 



Ciat 



^*^4ia*^**^'^ 



^tsdiei WW Toidy as bwiM moottun^ wk toaat 
thtt dK jMfir mw ihooli beiitSicted. LmA 
Clerk Miller adcuiited the latt^ altera 
aari hn pca e d an tMttnf puaishm^nt. 
A riMflarawtnaitanre oeqmeA ai acpiesticHi 
Mte« the Govt of Admixalty^ abcmt a wreok 
.aii tta oaast ov OiluKy. 
- la Aia cave Ihe word cfiniatis ikot iiBfpit>pcif * 
§Mim k the general diaraet^ of the cliche; 
tat thete are two apecieB 4if tedition UboUod^ 
.one tiie makiaif a lyw o h, aaotlMBr the ^Uiih^ 
jagabook. 



liOfd filnaaadr— I ooBcar in Ae observetioai 
^wki^ yoar toiMap addreoied to the J^. I 
Ibiak this joiy dOMrvea tiie thtuks of tite 
Court ; and, wku is mora, tke Aanks of Ike 
ipoanCiy. I think they deseire the thanks of 
anofher ciaas of men^ of whom I know little 
^t hj report — of those who are coaaidering 
j^ow rax they msnr go in opposition to the con- 
adintlon with safety to their lives. 

It was said by ooansel, that the present was 

hn from bein^ an aggravated speaes of sedi^ 

^on. _ I like it the better for that. It is more 

4gTeea!Ue to my feelin^ps — to the feelings of 

every jnry, and of every iudge— to have mere 

moderate crimes to try^ man to be obliged to 

•jofiict transportation, or death. 

' f am the more impressed with a sense of the 

jnerits of this verdict, that when in ffroping 

4apf way about 11 o'clock a^ night, in ue dark 

•treeta of this city, and leflectmg with myself 

wbat verdict I iftkonld have given, had I been 

m jnrfBian in this case, sncb was die ^fklti of 

a bfaoe <Mf ekMfnenee, ibat I eanaei say wlielhe# 

I wooild bate said yes ortto, if I had been at 

fbsft t&ne bbfiged to give iSi efpAnlOiii whethef 

^er not the jpfisbn^n were gtiilt)r« Ltfee iM 

j«i7 1 diooldfairfe wished to h*ve betts inolosed 

§tst oonsideraiion. But, lyrrtet beMin^ It^ 

jtty doMbt dteafypeariBd, and I came to lh« 

eipmoa, that the reletraney sC the bidi^Mient 

as deaf aM the fbcfs completely pNfred. 

%mff wortl--HSvef7 kttef of this indiotmetit 

18 now been ftu^ proved, fftie JeYy hh^' 
fiwnd It iMived, thiit afltei^ siifeal^ite of the 
B^ctel with d«e iespeet'(Wli«aeir s«Holilly m 
atft I do'ndi know), they |049n toeftt^ '« BM 
MMbld he be so inlhtaated m to tiM a tfcMf 
iiar to tfaeir j«M pedtiMu h« \M IMriMd'AMir 
allegiance; yes, my fellow-countljMte^ iri 
.flMlbacasey Ift As0 kptf4 oii^ ettjj^dMee.*' 

It is net the lime new to iii^tolfe ki(» iM 
jCfMcnee $ thou|^, wave that OMttj^feM, I 
Awdd be lAcahr thit MA «#y eij^hMm U 
ntoved aoafayt the pMets. AMI it hai tiM 
tmfpMsi, iieoftett o^kusm^ thni Oiei 8fibii|^ 
#litit n uii afceei ee*ie otftHi tte^^HMide ^IR^ 
JOtitOtrndtf iHtnMte. Wftkt I 'afittde io f#, 
llte4epOiitiiAibf finrv^ Who tetl th«% Wis 
a ¥Me fM in Ihe OMnMM wkhf ^ilHM ^ 
fifiMlf tte «b6^)i8Safl^ ; ttiif tome eifecM^ 
tofit HiirijIfAflMs ilni «ra!< tffitililer mi II 

■m le »rti iii> t iM ffti^ iMt4M m^ 



MrtefsboaUHilbegvbM. Istet iiatrirH^ 
Aence that theee were tlsB wmds atiered m the 

ridi f B«t tt is nnnecessaiy to gs ihsongll 
endentoi It sppeaia to me^ thnt it wai 
not the ainistars or the dnr, bnt the oonMta^ 
tiott tet Was attacked. Bnt I «m1 not gO 
buo thetb All that Remains for as is» to eon** 
sider tiie amonat of the punisknent to be il» 
tteted eA the prisonen. 

The milder the pnnislwnent enn be made, if 
it be inch ai mey deter ethers from cotnmildng 
the like crimes in time ooSding^ thht is thi 
pnnishnient that will aaeet ssy wish and that 
of yonr lordshipi. This eate is different tosi 
those tried in 1703 and 1794. I looked inte 
them last night. They are ektieintlty diftrent 
from the pf^ent case. Ibere the pnaishmeut 
twatded trm tfansport«ion« NoHe of yo«t 
lotdshipscnn hoof opinion wo oan here gn 
that lengthy and> eonsideiriag Ae reooea* 
teendation of the jurjr, I think w^ shall ssdistr 
•at own oooseieae^ and the Jnstlte of tbe easoi 
by inilitting sit months' jniprisonriient o* iM 
paAelft. At the same tm^ tiiey sheuM b6 
obliged to ted secarity to ke«p ^e peaoO fo# 
the period of tlnree yeais^ Mr. Bsird, n^ 
appears to be k man of opulence^ under thd 
penalty of tO(R., and the other nnder that Of 
401^^ wMcih I Aink is not vAieasiiinaMe. 

lord 6dlMs.^^fiothof the apfortanatejnanels 
at the bar stand accused of sedition. Of that 
crime, after a long trial, conducted with inft< 
nite ability on bou sides, the unhappy persona 
hav6 been found guilty by a jurjr. Under 
tibese circumstances, nothina remains for us 
but to give effect to the verdict by indicting 
sooh punishment as it appeaii to us thek cam 
deserves. Taking atl the circumstances into 
consideration, aiM among otheft the reoom^ 
mendation of the jury, t concur in opinion aa 
to the punishment which has been proposed-^ 
that thoF should be impritoned lior six monthsg^ 
and find secntity lor good behaviour^ 

lord JHM(ja^.^In^onsideiingthejad^:aieii« 
Whi«h &x6M vb pMaMmcOd on this occa^on^ 
we iMiitnrally look to ihe judgmeM which h«^ 
be<^ pronOttfteed in shnilar tMepi ahd peM^ 
didarly to fhose wbhft have beeti referred ttf 
by lord dermand. For, in every br^cb or 
judicial ptoeedtfre^ aiiil in nolhin^ fnorO than' 
m pronouncing judgment op a verdict infetiteg*' 
aai arbitraty pnnithxnelltft, it is desinble to be 
gnfided m ptecedents. If this ease bad i^ 
iftmbled &e cas« of I^sbe Palnker,* to viAiicIt 
it has been assimilated by counsel, I thonld 
hayetH^it asniy orphiion that thepuniHh*^ 
lai^t itionid be the state fts in thitt casO. And 
if, utiliippil)r ib^ this €«>ntttty, Mch eates of 
mi ttid agisted tedition fHaB oome before 
tm CtthM^'-'Htei^ Utfle to be dis titt g n l s fted l 
ft^lh U ^et Mi -*^ wfll be my tq^inion, sM* * 
ilifl tiolieid«Hct)6n Of Ifte biw, kdd Of the WMlW 
d^m fttttej^Hyoi, thuttransp^hrttic ^ ii^fie 
pftyMr'ptiuilnttfeitf; Bttt X^kgree w tiMroplnoa 

• S How. Mod;tk. IV. Mn 



1991 



57 6E0R0EUIL 



THAtfAUs^Mer »Uhb 



[1«0 



which hat beeh 'eipMsMd^ tbitthSt Uaouit 
very different from the others alladed to, end 
that it has a nearer resemblanoe to that of Ro- 
bertson and Berry,* than to any others whidi 
ocenrred at that time ^ and I therefore thio|L 
that iaporiaonment is the appropriate popish* 
meat- in. this case, and that wludi is pointed 
out by precedent. As to the duration of the 
confinement, I am always averse to long im- 
prisonment'; and considering the recommend- 
ation of the jury, I concur in the limited time 
proposed in this case. 

Having said thus much, I must express my 
hopes, that this verdict will put down the 
crime of sedition at the present juncture in 
this countiy. It was urged in defence of the 
prisoners, that the. culpable expressions were 
employed when the per^ns were met, in a 
season of distress, to petition the Kins and 
both Houses of Parliament. But surely the 
right of petitioning may be exercised without 
making the speeches and resolutions, at such 
meetings^ vehicles for sedition and treason. 
What was said in a former case as to the 
liberty of the press and of speech, may be 
applied to the right' of petitioning. As every 
nan may print or may speak what he pleases, 
so mi^ he use what language he thinks fit in 
his petition, or in the speeches and resolutions 
accompanying the petition: But under this 
condition, that if in his petition, or in the 
speeches and resolutions accompanying it, he 
is guilty of treason, sedition or scandal, he 
must be answerable for th^ consequences, just 
as he would be^ai&s^erabl^ for those crimes if 
committed by him in eiercising the liber^ of 
the press, or the liberty of speech. Why 
should it be otherwise P I cannot believe that 
this necessary restraint on the right of peti« 
tioning will be any obstruction' to the right 
itself. If the real object of the petition be to 
6btain its prt^er, why should it be couched in 
offensive termd ? Is that the way to attain its 
object? It is the very reverse. It is the way 
to get it refused. * Such a course can be fol- 
lowed only for the purpose of getting a refusal, 
and at the same time spreading alarm through 
the country* To checx such conduct, as the 
verdict of tlie jury tends to do, instead of 
iniuring the right of petitioning, is the method 
of securing it, and rendering it truly valuable 
to the oountnr. 

I have read the whole of the pamphlet from 
which extracts are made in tne indictment, 
and I am sorry to sa^ I have formed a much 
worse opinion of the intentions of all the par- 
ties than I had by readipg the indictment, or 
by any thing that passed Qn the trial. It may 
iMve done little injury, fox the range of its 
circulation was limited ; but let any intelligent 
man consider what would have been the con- 
sequences, if t^is pamphlet had passed un- 
noticed, and if similar publications had been 
circulated in every village and populous town 
in the country. No man who reads this pam- 

* 3 How. Mod. St Tr. 79. 



phlet dm hesitate to say, thal'hi'tiidl a case 
the country would have been filled vrith the 
most combustible materials, and that a slight 
spaik would have lighted up rebellion from 
one end of the inland to the other. 

I shall only add, that if the prisoners and 
their associates will not learn wisdom from tiie 
verdict, and the opinion of the Court, I trust 
thejr vrill learn it from what was uttered by 
their own counsel, with a force of eloquence 
which, I trust, has made a lasting impressiokl 
on them. Mr. Jeffrey told them that they 
were treading on deUcate ground, that the 
expressions they used were roost, improper, 
inaecorous, and absurd, and that what they 
said only l^trayed an ignotantse of the bubject 
on whidi they spoke. I. trust they will re- 
member this lesson, and that all others will 
learn to profit by their exajnple. 

JiOrd Beiton. — I am of the same opinioii 
with the judges who have spoken regarding 
this verdict, and I particularly agree with the 
words which' have fallen fifom the last judce 
who delivered his sentiments. I shall -only 
fnrth^ observe, that while I concur most cor- 
dially as to the punishment proposed to be 
avrarded in this case, I have no doubt either 
of the right or the duty of the Court to inflict 
a higher punishment when required; and es- 
pecially to award the punishment of trans- 
pprtation in a case of aggravated sedition; 
In the present case, the short period of im- 
prisonment which has been suggested, is, I 
think, sufficient, all circumstances being coi^ 
sidered. 



Lord Jtatke Clerk. — I am extremely hapmr, 
that, under the whole circumstances, of tnu 
case, and particularly the recommendation 
whidi has been given to your lordships by the 
veiy respectable jury who had to try it, I am 
eiud>led, in the discharge of my duty, to oon*> 
cnr in the proposition now made as to the 
punishment which ^should follow upon this 
verdict. For I have, upon the most mature 
reflection, and the most deliberate, consider- 
ation I have been able to bestow upon the law 
of the case, formed a clear and unalterable' 
opinion, thiU, for cases of aggravated sedition, 
such as those which have been aUoded to by 
some of your lordships, the proper, the legi* 
timate, the necessary punishment for this 
Court to award, is, the highest short of a 
capital one. 

I take this opportunity, however, of stating 
as I before did to the jury, that, notwithstand- 
ing, the particular circumstances and aspects 
of this case, it does not appear to be one of 
that highly affgravated class. But I should be 
guilty of a dereliction of my duty if I did 
not take this opportunity of distinctly stating,, 
that, though not one in the highest class of 
sedition, the ofi)snce of which these prisoners- 
have been convicted, upon evidence, dear, 
satisfactory, and convincing, is a spledes of 
sedition attended with drcumstances of oon- 
8idend>le aggravation. . IallQde|injparticnlari> 



1411 



bnd t%omai Bnrd/or IMiikm. 



A. D. 1617. 



cua 



to tlM» cMe of the fntener, Tfaoims Boirdi 
For, though I did not think it neceAary or 
proper in me to dwell on that circomstance in 
niy obsenrations to the jury when I summed 
up t6e evidence to them, I do now think it 
mj duty to slate/ that the Situation in which 
that gentleman stood, — ^tbe rank of life in 
which he formerly moved, — the character he 
poaiessed, — the influence he had, — and, above 
ally the commission which he had lately held 
aa an officer, do^ in relation to this offence, 
and to the circumstances in which it was com- 
mitted, render his case of greater aggravation 
than that of the other prisoner. 
* This gentleman, although moving in an 
elevated sphere in the town of Kilmarnock, 
and seleeted by its inhabitants to be a com- 
missioner of p<riice, is proved, by incootro- 
▼ertibie evidence, to have associated for days 
witlrpetsons, some of them of the very lowest 
laak (for McLaren is only an operative wea- 
ver), temuBg a deliberate plan for the meeting 
wlikh has bioaghtp him into his nnfortuaato 
■itnatioo. I shmild have conceived Mr. Baird 
waifid have much better dischifr^ his dotr 
to his country, — would have shown a nracn 
better attention to the general distress, 
0br which I greattv fiBel,'biit trust it is now 
ttt a. way to be alleviated), had he confined 
liis exotions to contributing, acoording to his 
means, for the mitigation of that distress, 
instead of taking those active measures which 
it is proved he did take, in preparing the 
business, — ^in meetings, — ^in concocting the 
measures of the day,— and, above' all, in 
actually putting in the mouth of the automaton 
who api)eared in that box, a speech, which, 
when It is examined, will be found to contain 
the most scandalous and seditious matter* 
For the contents of that speech^ whether Burt 
was the real or pretended author of it, Mr. 
Baird rendered himself responsible. . I must 
therefore say, that, considering Mr. Baird had 
filled the honourable situation of Captain in a 
volunteer corps, he had altogether forgotten 
his duty in ever lending himself as a party to 
any Buch proceedings, the guilt of which is 
nov attadied to him by the verdict of the 




1th regard to Alexander McLaren, I have 
only to say, that he has been found guilty of 
ddveHng ^a :speech : which answer^ for itself, 
and I shall ada nothing more on the subject. 

But there is one observation which, in my 
former remarks, I omitted to state to the Jury, 
and therefore now think it my duty to make, 
Qpon the passage in the indictment taken 
mn one ot the speeches, in reference to the 
conduct of the clergy of Scotland. Your 
lordships know well to what I allude. The 
passage is^ ** Their Beveretai hirelings would 
oonvince yon that you are suffering under the 
visitation of the Almighty, apd thexefore ought 
to be submissife imder tne chastening stroke." 
I have asked myself thb question, after pay- 
hig ererv attention to the ingenious and elo- 
^oeat observatioxa piade ia order to give the 



i 



go-1(y W tUe pttssage; what-ebuid be the true 
meaning: of those who were accessory to this 
most seandalous libel on the clergy of Scot* 
land. I have asked myself, whedier it was 
meant to be applied to the E^blished Clergy, 
who are thus oranded with being *' Reverend 
Hirelings, who would convince the people that 
they are suffering under the visitation of the 
Almightv, and therefore ought t6 be submis- 
sive under the chastening stroke.'' IsUiere 
any thing in their character to warrant such 
imputations against them ? Did not all those 
who attended that meeting know, that there is 
not one of the Established Clergy who ia not 
eompletelv independent of the crown itself, 
and that they hold their situations as securely 
as any perBOns whatever do their property r 
What is there then in the conduct and darac* 
ter of the Established Clergy which could 
render them liable to the shamefol imputation, 
that, as hirelings, they'oould be guilty of 
incidcating any particular doctrines? And 
what is the founaation of this charge? It is, 
that they are guilty of having endeavoured to 
impress on their heareis, that the distress of 
the country is to be viewed as the dispensatioii 
of Providence. Is there any man, with the 
slightest impression of religion on his mind, 
who wiU deny, that the severity of a bad 
season, the pressure of a bad harvelt, proceeds 
from we will of Providence? ' Or was it 
meant to be impressed on the deluded and 
ignorant hearers at that meeting, that the 
Government, or any portion of the people^ 
were responsible for the distress prevalent in 
the country, which had been occasioned by a 
bad harvest, that had doubled the price of the 
necessaries of life } And yet because resign- 
ation to the Divine Will had been recom- 
mended by the Qergyi they are branded as 
hirelings. 

On the other hand, I have asked myself 
whether this charge was meant to be imputed 
to the respectable body of dissenting clergy- 
men, who, almost without a solitary exception, 
have shown themselves to be attached to the 
best interests of Ae country, and have been 
distinguidied for Uieir loyalty and steady 
allegiance ? Is it this dass that was meant to 
be so branded? If so, they have to tiiank 
those of their flodLS who. could gite countenance 
to- the publication of such sdtodal against 
them* This passage appears. to me to desig- 
nate the true character of the publication as 
most objectionable and inflammatory. It was 
intended to weaken the affections of the peo- 
ple to the government and established constitu« 
tion of the countrjr, while the character of the 
ministers of relision was likewise to be de- 
Ipraded. I ask, what would be the consequences 
, if such ]^roceedings were unchecked ? 

Notwithstanding this circumstance, however, 
whidi it was my duty not to omit to notice, I 
am happy, that in reference to the strong 
testimony borne to their good characters in 
timea patf^ bached by the recommendation of 
the Jury, we are juimfied in the discharge of 



149J «7 Q^QftQIi (II. 



fruf ^4hmitF M*f<vw 



IM 



our liMirad 4ttlr4"'te OMMonncifla. jdbA flM 

pImII be impri^^ned ^ f^ roi^iiftf withip jkhf 
T«i|b#Qai pt the Caii«^«r«^ of ];4MNmh ((hia# 
ipfkkii^ the pimialM^iit ^f kygnMP^^Anl id 

(ihfkU 6^4 WMurity |beep the pi^^fs^ for thirfif 
Ittfwf «q4fer the p^^^r ^ SJOMJut.; dad Aat 
^ijdpaiider M'l4ureo» 19 i«foen^ to his jof^ 
fnmfi t %TWf § , ihaV «9ly 4ii4 ifcwrito |;i^ jUk^ 
Hipfi peruid undfir tf]# pcM^y of 40^ 

JU(99(ao4er WLui^n apd ThiMB^ Bs4rd< 
p^r fi iag#t oMofyl 9*4 Mtt»n(ive ^ wdcucfLlpojil 
pf Ae ««M^ ciicnwitanofn «if 4hft ^^ie tita^ 
fvw ^ihihitad wmst f qu, t mr of your 
fOWItigr has foand b^h lod ewihiQf ^«l» the 

to(Bf|B*q^^ gdiUypf ihf orwa of 8edjltioi^ 
9» ^Pktffc^ Ml th# iodfctpiaiNt. b ii^ I pwi 
yipmni )iK»th'9f yw^ a fviinCal dufr for #a« If 
Ijlippunpelo yoiib v> pafareiice ia tVJ# ^^eidial, 
the tudgi^^ ^ch tho CoDijt ihM fou^^ ii 
g^MfjWiy to inlaid against yw. { say, I do 

il JvM» a iaof TO nag^ vi^m i pM^ m 

Ifal lalPOilg MPtimooy iUw4 ^wai b^iff* lO r9«r 
fpaw go9d ch^uEftctpai, I laiaopt thai yoia 

M fcunaittad yomatnia Ao haouilM on tWa 
wrfo^kaaiate day of M^a TKh lof De$ea»lbary tba 
m#4oimt^,attd tt#<otheiir atoi "va»M to gUro 
fprfalatifo toiirl^at a iiiiir has prfmowcad Aa 
ba s t d itio ^ { ^ tniat and L^ th«t tha 
aaaul^ ^ t^l wms^cX, apd ^t Ahift .opin^ony yia^ 
^wm )ip9fd' pvoQouaoe^ Jby tha whaW Court, 
paVtoro kf dnaoffaci^ipl^th of ypu; Aat it 
prMl taaah y/o^i, thai ho^ay^ ^pa,iqaDtfy ippo*- 
ceat four f wcydiog a aow^ w^ .bee.a» th^ 
di4iaai|to uijcruaay Mid na^fht taye beafb if 
the asaiaiple 1^ :heea^eiieii% foU9W€)d» pror 
duaftiya of wAf^Ml to the iataraMa .of your 
country. I trust also, the salutary chacfc |^an 
^aacaadinga of tips description, iirill have 
an Mpfpitaol affect on the pwblio mind, by 
ahofaiiig, t hat / mioted af tha >isht of patitiop is, 
jmUtJIfBd as tha peofiW lOf l&a free eovwtnr 
aia tip s(Ma thair tgnajvoicaa lU) government and 
Ihvs dagislatM^ ^ i^> fwapt .ou(t vhat nay 
^paar to Aem as rpmsdies, that ijght afforda 
vpaoiiaan or.wolaotioa i/> tho«^ ^ho^ in ijba 
pmoMcmiou ai t^atjagafal pbjeat» toe sight of 
Ihak 4ui|[9 a«4 in> swt^y /of Aa oina /af 

laditian. 



WWla |bi a ut^iaaM of tWt oonfttif an ear 
^ad iia atala their gijavaaoea to the I^^islatui^ 
^hey awai be canifu)^ that oaiUiar in the pr»* 
^us proaeediii|p,4ha speeches and reaaluLioua* 
«or ip the peutipu* Otemaelves, they inseit 
natter vhicn is cleariy of a criaiaal naloiu, 
^aditious in Us tendency, and likely to pvodaoa 
Uistiog mischief to their ^pualiy* It inII taadi 
thep, thai a)thoagfa emiflad W exeacisa Ihaf 
righlt, t)tey miast not. In its vMefmdp be guil^ 
ofj^ Tiolatioii of law. I t^te^oia trust that 
the reoik pf this trial will ha of importani 
banA ^ yM^ in the aouma of ycnar latnn 
liyes, and that this Court shaU sot, with negaai 
tp j9ia ofptbais, hara aoop nmasio^ again to 
$ini«Md?avtiou tha Clime ojF saditioa. lUli^ 
wifSP timat, >that coiuidaring ithp raaomBsandftr 
tipuiaf Aha jury, and the knicpt pnwahmaad 
whiah, uadar ab ^be ciraumat^mcAi, is about 4» 
be awud^d agajinst you, jmi witt &mkf la^ 
>olva, ahi^ i^eu you agiMwi ratwa taaooatg^ 
in wluiifpu fonwarly aoT/ed in ^ iMpact^falo 
fooy iMmiaill lie iinoeialy byslinyaar heaits^ 
md #maohiad u> the !^9 aatarasts of ynar 
90iMitiy md the c a n s t i a a tio n ja^dea which you 
haiia4ha ha^pinaia lia 



^e Lord Justice Cleit and Lords Ctmr 
missioners of Justiciary having cpnsidered- 
l^e verdict above recorded^ in result ^ereot 
decern and adjudge tke said Alez^mper Id^Lareji 
and Thomas Baira to be carried ftom the bar 
to tl^e Tolboodi 5>f Caaongate of Edtnbui^b^ 
therein to be detained for six mpntfaf from 
diisdate, and thereafter unt^l ihey shall fin4 
sufficient caution ^d s^yrety, acted in the 
books of Adjournal^ tot 'their good bdiaviour 
lor the space of three years from and i^er the 
ezpiTalipn of the s^ period of imprisonineny 
and t^ under the respective penalties foU 
towing: viz. The s^d Thomas Baird under 
the penalty of 200^ sterling, and the said 
Alezandpr McLaren upder t)ie penalty of 401. f 
and upon the lapse of the spiid period .of im» 
prisonment, and finding caption as aibresaid, 
grant warr^t to and oraain the magistrates of 
Canongate and keepers of their l^lbooth t^ 
set fkt said .Thomas Baird .and Ale^^ai^er 
M^uven ^ liberty. 



(fSiSDtd) 



D.B^i^][.P.IX 



1451 



Trid of miUam Edgar. 



A. D. 1817. 



C146 



699. ProceediDgs in the Bigh Court of Justiciary at Edinburgh, 

on two successive Indictments, raised by his Majesty's 

Advocate, against William Edgar, for administering 

unlawful Oaths, April 9th, May S6th : 57 Geobge III. 
A. D. 1817. 



COUBT OF JUSTICIARY- 
Apml 9y 1817. 



I 



lit. Hon. DaM Boyle, Lord Justice Cierk. 
. hold Bemand* 
LordGiOa. 
LoidJPata%. 
Lord HaloR. 

Cowuelfot the Croitn* 

lEU. Hon. Akttmder Maemiockie, Lord Advo- 
cate [afterwards a lord of Session and Jufiti- 
daij, with the title of Lord Meadowbank.J 

Jhma Wedderhmjif Esq. Solicitor-General. 

H. Warratier, W. S. Ag^ent. 

Camudfor William Egfgm-. 

Mm, Oarkj Esq. 
Geo. C rmrnt ot o if Esq. 
Tko$» 2%0MMOii, Esq« 
Jbnef Momcrieff Esq. 
Frtmd$ Jeffrtjf^ Esq. 
J. F. GrmU, Esq. 
Hemy Coddmmf Esq« 
J» A.MiBrrmf, Esq. 

G. W. Boyd, W. 8. Agent. 

William Edgar and John Keith w6re placed 
«t die bar. 

Lord J^iUce Cferft.— William Edgar and 
John Keith, paj attention to the itioictment 
against yoii^ which is now to be read. 

<< William Edgar and John Keith, both 
present prisoners in the Castle of £din- 
boigfa, yon are indicted and accused^ at 
the instance of Alexander Maconochie of 
Meadowbanky his majesty's advocate, for 
his mijesty's interest :' Ihat albeit, bv an 
act passed in the fifty-second year of his 
present mi^esty's reign, intitaled, * An 
act to render more effectual an act passed 
in the thirtynKventh year of his present 
majesty, for preventing the administer- 
ing or taking aniawfiil oaths,' it is mler 

' oUa enacted, * That every person who 
shsil, in any manner or form whatsoever, 
adminiBler, or c^use to be administered, 
or be aiding or assisting at the adminis- 
tering, of any oath, or enpsement, pnr- 
porting or inteading to bina the person 
taking tiie-same to commit any treason or 

VOLXSKOL I 



murder, or any fekmy poniAahle by law 
with death, shall, on conviction thereof 
by doe course of law, be adjndged ffuilty 
of felony, and suffer death as a ielon, 
without benefit of clergy.' Andfuither, 
by section fourth of the said act, it is en* 
acted, ^ That persons aiding and assist- 
ing at the administering of any such oath 
and engagement, as aforesaid, and per^ 
sons causing any such oath or engagement 
to be administered, thoogh not present at 
the administering thereof shall be deemed 
principal offenders, and shall be tried as 
such ; and on conviction thereof by due 
course of law, shall be adkidced guilty of 
felony, and shaH soffiBr deam as felons, 
without benefit of clergy ; although the 
persons or person who actually aikiinis- 
tered such oath or engMement, if any 
such there shall be, slmlf not have been 
tried or convicted,' And farther, by sec- 
tion sixth, of the said act, it is, enacted, 
'That any engagement or oUigation 
whatsoever, in the nature of an oath, pur- 
porting or intending to bind the person 
taking the same to commit any treason or 
murder, or any fdony punishable by law 
with death, shall be deemed an oath within 
the intent and meaning of this act, in 
whatever form or manner the same shall 
be administered or taken, and whether 
the same shall be actually adminisCer^ 
by any person or perscms to any other 
person or persons, or taken by anv other 
person or persons, without any admini»* 
tration thereof by any other person or per- 
sons:' Yvt Tnvs IT IS AHn^orvaniTT, 
that vou, the said William Edgar and John 
Keith, are both and each, or one or other 
of you, guilty of the said crimes, or of one 
or more of them, actors, or actor, or art 
and part : In a» far a$ you, the' said 
William Edgar and John Keitli, having, 
at Gclasgow, and in the vicini^ thereof, in 
the course of the months of NovembcHr 
and December 1816, and of January and 
Febnuuy, 1817, wickedly, maliciously, 
and traitoroudy conspired and i^reed 
with other evil-disposed persons to break 
and disturb the piu>lic peaoe, to change, 
subvert, and overthrow the government, 
and to excite, move, and raise insurrec- 
tion and rebdlion, and espedallyto hold 
and attend secret meetings, for the pur- 
pose of obtaiiMDg annual parliaments^ and 



1471 



57 GEORGE til. 



Trml of. WObwm E^ar 



iu& 



universal suffrage, by unlawful and tio^ 
lent meansy did then and there, both and 
eacb, or one or other of you, wickedly, 
maliciously, and traitorously administer, 
€t cause to be administered, or did aid 
or assist at the administering, to a gr^at 
number of persons, an oath or engage- 
ment, or an obligation in the nature of an 
oath, in the following terms, or to the* 
following purport : — * In awful presence 
of God; I, A B, do voluntaiily swear,. 
That I will persevere in my endeavour- 
ing 'to> fbim a brbiheihood of affection 
amongst Britons of every description, who 
are considered worthy of confidence; and 
lltat I will persevere in my endeavours to 
obtain for all the people in Great Britain 
and Ireland, not disqualified by crimes or 
insanity, the elective franchise, at the age 
•f twenty-one, with free and equal repre- 
sentation, and annual parliaments ; and 
that I will support the same to the utmost 
of my power, either by moral or physical 
strength as the case may require : And I 
do further swear, that neither hopes, fears, 
rewards, or punishments shall induce me 
to inform on, or give evidence against any 
member or members, collectively or iodi- 
Tidoally, for any act or expression done 
or made, in or out, in this or similar so- 
cieties, under the punishment of death, to* 
be inflicted on me by any member or 
members of such societies. So help me 
C^od, and keep me steadfast.' Which 
oath or obliaation dhl thus purport or in- 
tend to bind the persons taking the same 
to commit treason, by effecting by physi- 
cal force the subversion of the established 
government, laws, and constitution 'of 
diis kingdom. And, more particularly, 
you, the said William Edgar and John 
Aeitb, did, upon the 1st day of January 
181 7» or on one or other of the days of 
thai month, or of December immediately 
precedittg, or of February immediately 
following, at a secret meeting held for 
that and other unlawful purposes, in the 
House of WiUiam Leggat, change^keeper 
in King-street, Tradeston, in the vicinity 
of Glasgow, or elsewhere at Glasgow, or 
in the immediate vicinity thereof, both 
and each, or one or other of you, widcedly,. 
maliciously, and traitorously administer, 
or cause to be administered, or did aid or 
assist at'the administering an oath or ob- 
ligation in the terms above set forth, or to 
tiie same purport, to Peter Gibson, John 
M^Lauchuune, Jcihn Campbell, atid Hugh 
DieksQo^ all presept prisoners in the 
Castle of Edinbofgh ; as also to James 
M'£wAn, now or lately. caTding-^naster at 
Hamphiies Mill, Gqrhals of Glasgow^ and 
ll*Dowal Pale or Poat, bow or lately 
weaver in PiacadAUf Mtreet, Anderston, in 
the vimnilgrofiGlaMcrw, wfai», oonsvious 
of tbdr j^t-iia ne 'pettBMS, lune ab- 
fmmA&km^ ladL:ib«n4iWfi» ; aa abo to 



John Connelton, now or lately cotton- 
spinner in Calton of Glasgow, or to one 
or other of them, and to other persons,, 
whose names are to the prosecutor un- 
knojvD, the said oath or ooligation, thus 
binding, or purporting to bind the per- 
sons tsStiog the same to commit treason,, 
as said is. (2.) And further you, the said 
Wifliam £dgar and John Keith, did, upon 
the 4th day of January, 1817, or on one 
or other of the days of that mouth, or of 
December immediately preceding, or of 
February immediately, follpwing, at the 
house of Neill Munn, innkeeper and 
stabler, in Ingram-street, Glasgow, or 
elsewhere at QlasgAw, or in ihe imme- 
diate vicinity thereof, both and each, or 
one or other of you, wickedly, malici- 
ously, and traitorously administer, or cause 
to be administered, or did aid or assist at 
the administering an oath or obligation in 
the terms above set forth, or to the iaroe 
purport, to the said Peter Gibson, John 
M'Lauchlane, John Campbell, Hugh Dick- 
son, M'Dowal Pate,, or Peat, and James 
M'Ewan ; as also to James Hood, An- 
drew Somerville,^ John, Buchannan, an^ 
James Robertson, all present prisoners ill 
the Tolbooth of Glasgow,, or to one w 
other of them, and to olber persons, whose 
names are to the prosecutor, unknown^ 
the said oath or obligation thus binding,, 
or purporting to bind, the persons taking 
the same to commit treason, as said is. 
And you the said WiUiam Edgar having 
been apprehended and t^ken. before 
Daniel Hamilton, esquire, one of the 
sheriffs-substitute of Laaaikshire^ did, in 
his presence at Glasgow, on the 6th day 
. of March, 1817, emit and subscribe a de- 
claration ; and having been taken before 
Robert Hamilton, esquire. Sheriff-depute 
of Lanarkahirsy you did, in his presence^ 
at Glasgow, upon the 7th and 8lh days «f 
March, 1817, emit and subscribe two se- 
veral declarations : And you the sai^ 
John Keith having been apprehended, and 
taken before the said Robert Hamilton, 
esquire, did, in his presence, at Glasgow, 
on the 6th and 7th days of Biareh^ 1817,. 
emit and subscribe two seveiral declara- 
tions : All which declaratioas, beipg to 
be used in evidence against each of ^<m 
respectively, will be lodged in due Ume 
in the hands of the Clerk of the High 
Court of Justiciary, before which yon 
are to be tried, that you nay^have 
an opportunity^ seeins the.samt* At 
least, times, and places foke^aid, the said 
oath or aogagement, or au oath or en* 
gagement to the saoie nnipost^ was 
wickedly, malicionly, 4m traitoaoualy 
admiaiateied, or caused to be atoiiiia-> 
tend; and aoae pmene did -M or 
assist at the admiaistexkig theraof^ and 
you the said William E^^pnr and, Jolm 
"ntilii ' ttfc./kfltfi an d :satrfi- ei '4Hie %^ 



ItfM 



fir AAmmttniiig unbmfiil Oaths. 



A. D. 1817. 



CISO 



trther off jfOQj piiKy dMrao^ ^tdrs or 
aetoiv or art «nd part. All which or 
paft thereof, being fouod proren by the 
venKct of an assize, before the Lord Jas- 
taco Geaeia], the Lord Justice Clerk, and 
Lords Commissioiiers of Justiciary, yon 
the raid WiHiam Edgar and John Keidi 
ongkt to be punished widi the pains of 
lair, to deter others from committing the 
iifce Climes in all time coming." 

<' H. Hon Deummovh, A. D." 

UST OF WITNESS£8. 

t. lUerf EamiUonf Esq. aheriff-depute ^f 

«. Doaiel BmuitoH, Esq. one of the sherifb- 

substitute of Lanarkriiire. 
:3. Darnel M'Catium, clerk ta John Dl?ysdale, 

dienff-clerk of LanaikAire. 
4k Maifkem Bunu^ derk to George Salmond, 

pracorator-fiseal of Lanarkshire. 
5. Joim LbMcj eleik to the said John Diys- 

dak. 
«. Jatipk Rod, writer in Gkisgow. 

7. M t mtk r Caldtry 6bjeriff>offioer in Glas* 

gow. 

8. Jama Thornton, clerk to the eaid John 

Drysdale. 

9. J krm m k r £baUa% cfaange^eepery Old 

Wynd'Of Glasgow. 

10. Marion MPLarmj or M'LaohHm, now or 

lately servant te die said Alexander 
Honter. 

11. Jokn Robartumj innkeeper and stabler. Gal. 

lowgate Glasgow. 
18. Jgne9 CampbeU, wi£» of Thomas Dow, 
steam-boiler maker and smith at Gird- 
wood and Company's foundry in Hutch- 
eaontown, in the vicinity of Glasgow. 

13. Jamet Bentcid, now or lately servant to 

lieill Munn, innkeeper and stabler iu 
ingiam-street, Glasgow. 

14. Atium Wiliom, now or lately servant to the 

said Neill Munn. 

15. Mattkem Fnfe, spirit-dealer in Wilson- 

street, Gfasgoif . 
1«. Jem Boyd, wife of the said Matthew Fyfe. 

17. WilMvm Li^gn^, change-keeper^ in King- 

street, comer of Centre-street, Trades- 
ton, in the vicinity of Glasgow. 

18. -EBtfA Dichony present prisoner in the 

Castle of Edinburgh. 

19. PUer GtUon^ present prisoner there. 

^30. Join M^Limcklanef present prisoner there. 
m. WUtiam Simmon^ present prisoner there. 
33. ioiMef Bttody present prisoner in the Tol- 

booth of Glasgow. 
33. Jofai CampheU^ present prisoner in the 

castle of Edinmirgli. 
M. ThmoM AidoiTy present prisoner there. 
H. HoM£ Druicmovd^ a. D. 



UST OP ASSIZE. 

County cf Edmburgk. 
Ctttmet Sbott, of Ballemo. 



Bidtard WooU^ of WUf^use. 



Wkiie, tobacconist in Dalkeith. 
Bobert lAftt, baker there. 
Joftft Woody merchant there. 
John Brawny farmer, Carrington. 
Andrew Johrutou, farmer, Primrose-barns. 

Counfy of Haddington, 

William ilicAeson, junior, of Drummore« 
John Sonunervdl of Moreham. 
WUliam Hcq/, farmer, Ilowden. 
John Brodiey farmer. West Fenton. 
Bobert Uopey farmer, Feuton. 

County of UnUlhgow, 
WUliam Gien of Mains. 
William Dawion, younger, Bonnytoun. 
John Trotter y farmer at Stacks. 
^bert Taylor, residing at Blackness. 
George TumbuU, farmer at Northbank. 

Cify of Edinburgh. 

Robert FraseTy jeweller in Edinbuigb. 
lliomas Bichardton, merchant^tailor there. 
IXivt^ Whitelawy watdi^maker there. 
Peter Feddie, trunk-maker there. 
William Trottery upholsterer there. 
Alexander BuueUy coach- maker there. 
John Inverarity, upholstcret there. 
George Yule, mercha** there. 
Alexander Aintlie, saddler there* 
John Steel, confectioner there. 
James Innet, gunsmith there. 
Daniel Forrest, hosier there. , 

Peter SawerSy saddler there. 
Creorge Hunter, merchant there, 
William Boss, tailor there. 
Charles McLean, draper there. 
John Laing, saddler there. 
John Mcpherson, tailor there. 
Francis Davutson, confectioner there. 
William Cooper, boot-maker there. 
William Dumbrecky hotel-keeper there. 

ToumqfLeith, 

John 3iPKemiey merchant in Leith. ^ 

Archibald Cleghom, corn-merchant there. 
Thomas Mortouy ship-builder there. 
Robertson Paterson, painter there. 
Charles Bobertson, merchant tliere. 
John Sanders, agent there. 
JoAit Glover, wright there. 

An. Gillies. 

d. montpevvt. 

David Douglas* 
L»rd Advocate, — From certain circumstan- 
ces, I find it proper to move the Court to 
desert the diet against John Keith pro loco et 
tempore. He will therefore be committed to 
prison upon a new warrant. 

[This motion was accordingly agreed to.] 

Lord Justice Clerk. — ^William Edgar, what 
do you say to this indictment? — ^Are you 
^uilt^ or not guilty of the charges contained 
in it^ 

WiUiam Edgar, — ^Not guilty, my I/>rd. 

Mr. CSra»i^(Wfi« — ^I am of Qounsel in this caae 



1511 ^ GEORGE III. 

for the prisoner at the bar. Hie indictmeot, 
which your Lordships have jtiBt heard read, 
charges the prisoner with a capital offence, 
that of administering an oath purporting or 
intending to bind the takers to oommit the 
crime of treason. 

My lords, this is not a point of dittay re- 
cognized by the ancient and common law of 
Scotland; neither the nature of the offence 
itself, nor the manner in which it is to be 
charged, is pointed out by any precedents or 
authorities familiar to your Lordships. It is 
an offence recently introdnced by a special 
jBtatute ; and, so far as I know, no trials havft 
taken plape hitherto upon that statute in Scot-- 
land, acdordinir to your forms. 

It will bjB admitted, that this crime is of a 
nature peculiarly deUcate. The life of the 
prisoner at the bar may depend on Che con- 
struction to be put on words alone, without 
reference jto overt acts by which they may 
receive a clear and unambiguous interpretation. 
To administer an oath without judicial authority 
is perhaps riot a very commendable prajctice,* 
and in a moral point of view it may sometimes 
be improper, as tending to lessen the obligation 
4>f an oath, when thus applied to frivolous 
or improper subjects, o^on frivolous and im- 
proper occasions^ But, my loids, at the same 
time, it h not in itself an illegal thingf it 
is prohibited by no law; and I understand, 
jand am well informed, that it is a common 

* Lord Coke says (3 Inst. 165) ^ Oaths that 
have no warrant by law, are rather nooa tor- 
nienta guam tacramenta; and it is an high con^ 
tempt to minister an oath without warrant of 
law, to be punished by fine and imprisonment." 

The cour^ of King^ Bench has often repre- 
hended, and discouraged as much as possible, 
the taking of voluntary aflSdavits by justices of 
the peace, in extrajudicial matters. In the 
case of Bramah v. The — '—Fire Insurance Com- 
parui, Mich,T. 1800, in B. R. Lord Kenyoa 
C, J. said ^* He did not know but tliat a magis- 
trate subjects himself to a criminal information 
for taking a voluntary extrajudicial affidavit,** 
3 Chetwymtt Bwm^ 529. 

''It is much to be questioned," says Mr. 
JuUiee Bbdatom^ ^ how far any '' magistrate is 
justifiable in taking a voiluntary affidavit in 
any eztn^judicial matter, as is now too frequent 
upon every petty occasion : since it is more 
than possible, that hj such idle oaths a man 
may frequently in Jiro contckntut incur the 
guilt, and at the same time evade the tem- 
poral penalties, x>f periuiy." 4 Qmm. 137. 

It must be regretted that the highly improper 
practice of administering what the learned 
commentator terms'' idle oaths,*' should be still 
continued by any magiatrates, notwithstanding 
the reprehensions contained in those books 
with which ihey are generally 8iq>poaed to be 
acquainted. 

t Seethe preceding note, and the observa- 
tions of Le Blanc J. in EaMi case, ant^ Vol. 
10, p. 1609;. 



Trial of WUUamBdgm^ 



[15S 



and daily piactice. It is practised in many 
associations and Maternities; for example, in 
masonic meetings, when there is not the least 
intention on the part, either of the persons who 
administer, or of the persons who taae the oaths, 
on the one part to impose, or on the other to 
undertake an unlawful obligation. To make a 
common pralctice of this nature the ground of 
a capital punishment, when the guilt or inno- 
cence of the act depends on the interpretation 
of the mere words used, may appear not per^- 
haps altogether in unison with the mild and 
equitable spirit of British jurisprudence. Your 
lordsbqis are well acquainted with tbe statnte 
1. M^ry, chap. Ist, which swept away ficom 
the law that mass of constructive treasons by 
which it had been previously polluted— a stai 
tnte hdd by the natu>n at die time it was en- 
acted, as one of the greatest blessings ever 
conierred by the legislature, and still looked 
up to by their posterity vrith admiration and 
gralitade. Though constnietive treason was 
tnus abolished, yet the statute upon whidi the 

Sresent indictment is founded tends to intro- 
mee a capital felony, wbiah, though not pi^ 
nished as treason, is yet punished with death, 
the n^ifliiMi sifpJidMn of the law. 

This statute was no doubt passed at a time 
when banda of armed men were committing 
evey species of atrocity, when they were 
buminr, robbing, and murdering, and in 
particular when they were.compellii^ persons 
by force to swear oaths, unquestionably and 
clearly imposing an oblisation to oommit 
felonies.* In this state of things, a speedy 
and efficacious remedy was necessary ; and 
no doubt this statute was passed with Uie best 
intentions, and may have been productive of the 
most salutary consequences. All &is being 
avowed, yet.considmd as a standing rale, 
incorporated in the criminal law of Scotland, 
and applied to other occasions than those 
contemplated by the legislature, it was not per** 
haps penned with all .the caution requisite, 
and may involve principles which it vroiild not 
be very safe to admit permanently into our 
system of jurisprudence. But it is not your 
lordships province to judge of the merits of 
the enactment, and far less am I entitled to 
pronounce an opinion upon diat subject. - It 
makes part of the statute law of Scotland, and 
that is enough. But althou|^ I am not enti- 
tled to inquire into the expediency of the law, 
it is my right, and it is my duty, to inquire in 
what manner the words of it stnU be constni-r 
ed — ^in what manner, being part of the erimi* 
nal law of Scotland, it shall be applied and 
accommodated to our form of juoidal pro* 
ceedings. And, after folly considering the 
subject in this more limited view, I trust 
I shall be able to satisfy your lordships that 
the libel in this case is not relevant, according 
to the principles of the criminal law of Scot- 

* See the debate in the House of Commons 
on the motion for the introduction of thia ata^ 
tute 33 Hans, Farl. Ctfb. 31. 



1531 



^ AMmtkring utJtu^Oalki. 



iLD. 1817. 



tia4 



land. This is a subject of the nlDMNit impor- 
taoce, and tot iririch the attention of your 
lordships is now most earnestly requested. 

In tliis indictment the mijor proposition 
sets fiHtfa, that, ** Albeit, by an act passed in the 
fifty-second year of his present Majesty's reign 
intimled, 'An act to render more effectual an 
act pused in the tbirty-seTenth year of his 
present Msjes^, for prerentinff the administer- 
mg or taking unlawml oaths,^ it is, inUr aUOf 
enacted, l^at every person who shall, in 
any aaaoier or form whatsoever, administer, 
or canse to be administered, or be aiding or 
MSisling at the administering of any oath or 
engagesBcnt, pmrporting er iotendiog to bind 
the peiaoo tBiting the same to ooo&mit any 
treason -or murder, or any felony punishable 
hj law with death, shall, on oonviction thereof 
by doe- eonrse of law, be adjudged guilty of 
tdofo^j and sufief death as a felon, witbout 
benefit of dergy/" There are then other 
Manses of the statute recited in this major pro- 
poaitioD. 

1 have no objections to make to the migor 
|NopQsition of this indictment. It is oorrect 
SB ledtiBg the elanse of the act eonstituting 
the crime sriiieh is now to be tried; and, 
the i e fof e, in oonsideiing this proposition, the 
«iily thii^ to be attended to is, toe nature of 
the crime which' is here stated to be punish- 
able with death. It is the administering an 
«ath, ** purporting or intending to bind the 
penon taking the same to commit treason or 
WBider, or any folonjr punishable with death.'' 

Upon readmg this clause, your Lordships 
wiU be satisfied, that it is not sufficient to con- 
stitnCe this crime that an oatb was adminis- 
teredr— it is not suflBdent that the person 
administering that oath had criminal intentions 
at the time— or that he was engaged at the 
time in criminal practices — ^it is not enough 
that the person who takes the oath intends to 
eommit, or is in the eourM of committing 
tfiminal practices. All that is insufficient to 
co n stitu t e the crime here set forth. It is ne- 
cessary,— it is the essence of the crime, — ^that 
the oiik administered shall itself purport 
or intend to bind the taker to commit the 
crimes specified in the statute* It is quite 
possible that two persons may be actually en- 
gaged in committing the crime of treason, and 
wlule thus occupied, that one of them, with a 
view of practisiiig a deceit on those who were 
present^ and of ensnaring them into the traitor- 
ous conspiracy, should administer an oath to 
his aaaocmte, under the pretence of binding 
him lo commit the treason. But if that oath 
did not in ftct impose the obligation, it could 
not wanrnnt a oonvictioii under this statute. 
It mt^t be an orert act of treason, and all 
lhe.persons present, be who administered the 
eath, he who took the oath, and the spectators, 
might be punishable as traitors, yet still an 
i nd ictm ent under thepresent statute could reach 
■oue of them ; for to make the statute apply, 
it is efssntial dmt the oath administered pur- 
ports or iateiKU to bind the patty taking it io 



commit treason or feloOT. An oath not con* 
taining that obligation, however nefarious and 
detestable in- itself, may be the ground of a 
different prosecution, but it cannot be the 
ground of the charge now before your lord- 
ships. All this is too dear to require any 
illustration ; it must be manifest to every one 
who reads Uie words of the statute. 

Having said thus much on the major pro- 
position of the indictment, we now come to 
consider the minor proposition. Here, as in 
other cases, there axe two subjects of inquiry ; 
1st, Whether the fiicts set forth in the minor 
amount to the charge in the major? and, 2nd, 
Supposing that they do, whether they are spe- 
dned with that precision and minuteness whidi 
are required, by the law of Scotland, to oonsti- 
tttte a relevant indictment ? 

The minor begins in these terms: '^Yet 
true it is and of verity, that you, the said 
William Edgar and John Kdtb, are boUi and 
each, or one or other of you, guilty of the said 
crimes, or of one or more of them, actors or 
actor, or art and part : In so far as yon, the 
said William Edgar and John Kdth, having, 
at Glasgow, and in the vidnity thereof, in the 
course of Uie months of November and De* 
cember 1616, and of January and February 
1817, wickedly, malidously, and traitorous^ 
conspired and agreed, with other evil-disposed 
persons, to break and disturb the public peace, 
to change, subvert, and overthrow the govern- 
ment, uul to ezdte, move, and raise insur- 
rection and rebdlion, and espedally to hold 
and attend secret meetings for the purpose of 
obtaining annual iiarliaments and universal 
sufirage, by unlawnd and vident means, did, 
then and there, both and each, or one or other 
of you, wickedly, matidously, and traitorously, 
administer, or cause to be administered, or 
did aid or assist at the administeiin|^ to a 
great number of persons, an oath' or engage- 
ment, or an obbgation in the nature of an 
oath, in the following terms, or to the follow- 
ing purport." — And then the words of the oath 
are recited. — *^ In awfol presence of God, I, 
A B, do vduntarily swear, That I will per- 
severe in my endeavouring to form a brotner- 
hood of affection amongst Britons of every de- 
scription, who are considered worthy of con- 
fidence ; and that I will persevere in my en* 
deavours to obtain for all the people in Great 
^tain and Ireland, not disqualified by crimes 
or insanity, the dective franchise, at the age 
of twenty-one, with free and eqinU represen- 
tation, and annud pariiaments; and that I 
will support the same to the utmost of mv 
power, either by moral or physical strength 
as the case may require: AndJL do further 
swear, that ndtber hopes, foars,* rewards, or 
punishments, shall induce me to inform on, 
or give evidence against, anv member or mem- 
ben, collectively or individudlyy for any act 
or expression done or made, in or out, in this 
•or simikr societies, under the punislunent of 
deadi, to be inflicted on me by any member 
or members of such societies. So bdp me 






16S) 



57 CBOBOE IIL 



Im theiiidiolmeBt» thai tids oath, «r bI ^mm 
mn '••Al af tli« 8MI16 farpofl^ i«u ftdiiiiiri»* 
4«re4. 

li is here Mt fitrtby thattW prinMr at the 
bar WW is the couie of coomiiCtia^ certain 
Mnoastriaie^ ISraBecrhaa^ your lovAsMj^ 
will obserra^ an aot kid aa a aabatantiva 
ch a g g a a^ui tha piiaaatr; and it it tiapos- 
aiUa tittt tkay ihouid ba to laid in this indict, 
■leal, kft a prisMiar oaa ba chirged with no- 
ikiBf Ml die ntmay but wiuit anounta to the 
ariaat laid in tha aaajor prapoiition« I( is 
aaid, that tba mitosiar lunriaf cositDilted tbota 
•ananaty did adamitter Ihe oath. But thote 
cnnes are noH hiid with a view to iniict pa* 
«iahBftettt fla bin fof then, though peibapt 
they are stated in motkm probtiihm of another 
critne. it is inooaspetent in the minor propo- 
rtion of the iodietmeBt to say that the ptisoner 
at gnilty of a felony aot charged in the nftjoty 
ia Older to pnnish him for that felony. Tha 
^haiye in thn indictmeBt is for administering 
ma nnlawfol oath ; and wbateTer facts comiect- 
jed with a eeparate criase are set forth in the 
aainor only, they make no part of the charge 
•against the prisoner at the bar. 

I trust I shaH aftarwaids show, thbugh it is 
fiat at preaent the time to make inqoiry into 
IhiSy that however atroctoos the crimes here 
Jiffirmed to have been committed by the pri^ 
•aoner may be, as they are in UicmselTCs totally 
iffeloTant to infer the crime with which he is 
vaaHy charged, so at the same time it is in- 
coaspelenty according to the law of Scotland, 
4o bring any pioaf of those crimes. This I 
jhall postpone for after«oensideralioa, pro- 
«aeding, in the mean tinie, to consider the 
oath wideh was administered, which is said to 
purport an oUigalion on tha taker to ootnnit 
treason. 

Tha oath is ta tbese words >^* In awfol 
oreaenae of God, I, A B, doToluatarify ^wear, 
That I will persevere in my endcaTouriag to 
form a brotherhood of afihction amongst Britons 
.of every daaeriptiom, who are considered 
•worthy of confidence; and that I will per- 
aevare in my endeavonrt to obtain for all the 
people in Great Britain and Ireland, not dis- 
anaiified by Crimea or insaai^, the cibeotive 
vancbise, at the age of tweatr^one, with free 
and equal representation, and annnal pariia* 
manls ; and that I wiH support the same to 
te atmest of my power, hither by moral or 
physical strength^ as die caae mar reqaiiv: 
And I do further swear, that neither hopes, 
foata, lawanfc, or punishments, shall induoe 
me to inform on, or give andenoe against, an^ 
momber ot mcftiben, coHeotively or iiMli«». 
dually, for any aet or evpression done or made, 
.ia or out, in this or similar societies, nnde^ 
-the panishauiat of deaith, to be iniioted on nne 
by any member or members of aueh societies. 
So help me G«d, and ke«p me stedfast/'«M. 
Then it is tfl|id, ^ Which oath or oiligatioa 
did thnapwpart w iadend to band the persona 
tafcitg iio^ma m aottmit maton^ by mctiag 



TfUffmOminSdg^ 



Lisa 



by phjnieal force flie sulM<Mion of the estaA>- 
Kshod igov9mmm%, laws, and oonstitation of 
this kingdom." 

Bert the prosecutor recites the oath, atad 
aajia that it purports an <Mgation on die pter- 
son takiag it to commit treason, by effecting 
by physical fotoe the snbvorsion of the estab- 
lished goremment, laws, and conslituftioa of 
this kiagdom* Bnt it is not enough that the 
piosecutor says it has that purport. If, on 
eondidering the oath itself, your lordshipa are 
of opinion that it does not imply what tho 
prosecutor alleges, his tnere avermeat that it 
ia an oadi of a certain purport will not mako 
it so ; and he is wot entitled to have that 
question sent to the jury, for that would bo 
taking from the Court the question as to tho 
reloTancy of the indictment. 

Suppose in an indictment for perjury, tha 
prosecutor, after allegibg in general terms that 
this spedftc offeiice has beeb committed, pro- 
eeeds ix^ the minor proposition to give the do* 
position of the prisoner in detail, and aAer« 
wards to contrast it with what be alleges to be 
the troth, asserting that there is such a manifest 
discrepancy as necessarily implies the' com^ 
missioa of the crime chai^g^ — still his mem 
assertion on this snUect will not be sufficient ; 
and if the Court nail be satisfied, on com- 
paring the alleged truth with the alleged felse* 
nood, that there is not an absolute contra^ 
diction between them; in other words, that 
what the prisoner has sworn may be recon- 
ciled with what the posecutor says he ought 
to have sworn, you will not hold the indict- 
ment to be relevant, nor send the charge to a 
jnry to be tried. That being the case, if your 
lordships, on reading thb oath, be of opinion^ 
that it does not purport what the public pro* 
seeutor says it.parpoiu^ then I say this ia an 
irrelevant libel. 

It is true that, besidet the word ^ purport^ 
iBg,** there is aaetber word used here, ** in<* 
tending.'^ What is the signification of tho 
word iniendiMg I ^hall afterwards consider, and 
it is of material importance to this case ; bnt 
let us see, in the &rst place, what is the signi^ 
fication of the term purport. This term, aa 
every body knows, is applied to deaote the 
meaning of words as gathered irom the word9 
themselvea — ^the meaning as eipreued in eon-« 
tradistinotion to the meaning which may bo 
mmfechutd from extrinsic feels or circam- 
siances. Look then at the words of the bath, 
and see if it purports what the prosecutor saya 
it does. No man who reads it can say so. 
The words of the oath are, ** 1 wiH parsevero 
in my endeavouring to form a brocherhood of 
aCBOtion amongst Britons of every description, 
vfho are consuiered worthy of' confidence.** 
Nobody will pretend to say that there iaan 
obUaation to commit treason here. There ia 
aa obligation to form a brotherhood of affeo- 
tioa. AH the subjects of this ookmtry are 
btotfaers ; and it is boooming that they shoaM 
dwell together in unity. Inis cannot pwrpoit 
any thing to b» fimi thaiA ia iaipt^r.' Th^ 



457-1 



Jor AJmmUtsriMg vmUi^^A Oaths* 



A. D. 1617. 



LIM 



o^ then gpM on, " That I will perstv«ra in 
my end^^iTcmn to obuia for «U the [^opl« oif 
Orest BitMa tnd Ireland, not disqiu^ed by 
criiaes or iosaat^^ tlie elective firamchise^ et 
the age of twentT-ODe, with free and equal le- 
pfBfentalioD, and aoaual padiaBMita." There 
are few penons at preient, who are qua^ified^ 
^iiher horn their natural paUg or inforMMOioOy 
tp jodge of subjecli of this kind, who witt b» 
of opiaioii that either anaoal pariiamenti or 
VDwersal saffrage would be of adrvaotage tp the 
ipbabitaQfa of this countiy, or would ooaduoa 
tio aay thing else than anarchy in the fi^ in- 
stance, and deapotism in the eod* 9ulr 
although this be true,, it ia well known to 
your lordships, that it ia the piivilege of every 
inbject in this oountiy, to fonn hia own opinioo 
on aobjects of a poUtieal nature; and.haviiig 
formed his opiaion, he may make u^e of law* 
fol means to have such dianges produeed in 
the ooostitntion or goveranent of the cooqtry 
%sbe may think expedient. The lagi^Utare 
Ipi^at diment tiqses alleied th(» duration of 
padiament and the. mode of suffrage ; and if 
ai^ pmoQ believes that annual parUaments 
and universal txifftt^ would be of benefit to 
the countiy, it ia no crime to use lawful en- 
d«.vours to obtain these object^ which can 
only be obtained lawfully by ap act of thi» 
British parliament itself:; and you know» tha^ 
petitioos ibr such objecls ve daily presented 
la.pvliam^ot, and daily received. 

It is said in the oath, " I will penevere" in 
^lese endeavours. If the endeavours are law*- 
&1, the perseveriog in: them is np orime.at all« 
It. is not said iu the oath^ or in a^y part of th^ 
indictaBent, that the prisoner was engaged in 
ualawfiil prqeots for these, purposes. It is 
ssid, indeed^ iu the indictment,, that the peD* 
sons who administered the oatfi were engaged 
in a tMflsonaible cpaipiraqr; hut there is^no 
^>ecificatioii. of circjamstaneas to evinee tha 
potoiMf^s a^ession to this. conspi'acj> . Df>r if 
t^ effence of oonspin^y apy part of the sub- 
stantive charge made a^^nst him in the in* 
dielBsant. That being th^ case, tbeoa^i or 
obligation to endeaivour to obtain annual paiv 
Kanaants and univeisel suirage, is:an o)>Hg%> 
tioo in itself perfectly inooeePlt. Your lei4r 
ships will notsav that these eodaavouts ata 
vnkvwfiU, nor witl you impute iniptoper moy 
tives to the pa^ inproseeutiii^ them, for yen 
are not antkorised to make such an in^dr 
Bient. yfbm arpqtsenjpromisos to use eriN^ 
eadeaflroof to aoeen^ish Vk objeet, the gene- 
ality of this ezpinssion vnll oeivar ciotend it 
to uola^«f«l endeavouvs-^it west he .construed 
with the comaan and necassaiy limsiatian^ 
Ihat he wiUiose evaiy endfnvewr.wbieh tefnay 
hmUOfVH* Ifthis,pi»nciple.of4)QBStinctiaD 
ware n9t«dQp4ed# the onh of jal^wmlion itsalf 
auglit bnem^arted intn wa ohiigalian to 
MnmittmesaA. "• I do Mhft% .proaiiM, it 
fJb» nii^oaief mjfpovNBT^ u^/mppoit, wMnnytain^ 
^M-tSntod^MiisiimMiontof Aa Oa^^ fnup 

it by lawfid mmm l»if«itjVri 



The oath in the indietmeat then goon on tfl 
sqy, '' that I will support ik^taam to.the ^tmcil 
of my power, either by moral or physicfyi 
strength, as the case may aai|niBe/* Support 
wbatr UereisanainbifguitymtheoMth; audi 
an ambiguUy which shews how hamgrUms it in 
to admit constructive treasons reared 14ms 
words uttered by persona not critically an* 
quaiated with the imperfect infltmment «f 
language. Interpret this passage any wi^ yon 
ehusa» i^ will not anUHUit to any thing criminaU 
Even supposing that it binds the party takiM 
the oath to*obtain the olyects which:aie apedted 
ipMtrbymoralioQphvsicalibro^whatisthe isMltl 
it is, that lasrliil omaou am to be ohtainsd ^ 
lawful measures. No person cnn he hUmen 
£or exerting his utmost! effoKs undnr tel 
limitation^ Or take the only other oonstnao* 
tion which can be putiupon this clawa<of tiki 
oath, and auf)pofin;tha party to jwenr^ that tag 
will siipport annual parliamems and unmemal 
suffuge tp the utnumt of his pownr, mknaMnii 
0^$ ihall W 2ncn aklmmdi that he wiU wm 
his best endeaivoum tp^continua and. perpetuata 
these iroaginaiy. bl^mipgp, when Aaiy ahatt onon 
have been psoonred for theceuntiy; lathm 
an unkwiful obligation? licevtmnlyia imt4 
If lawfol d^cla are obtained in a lawfnl 
mnnner, then, it is the dnty of gnod mbjanli 
to support and continue them* So ihn whaii» 
ever construction you put upon this clauat<of 
the <mii> whether ^mt snfipeae it tn relet to 
anteiiprises for obtaining what does not afarandy 
exists or for suppoiting imptoremania alW 
th^ shall ba .established bylaw, H is in eithei 
case perleotty jfrioeentt^-With segflird to thn 
Uims '' motel aed.physimi atmngth,'' Imay 
remark, a man may support what is lamM 
either by the.one«oa the othet^ and yet baAree 
Irem blame. The indindnala attempting tn 
piQcam annnaliparliamanls and-nnifamid Jttfc 
hagft, mlc^i emplnr their mond.sMngth for 
that pnrp0f e by usinf. trgumentSi; or thaif 
phynioal atrangili, for instanne^ by being dam 
patched with lettem m>d.mssaa gi s,.or goinjg 
about to seboit ammbemof pasUmnent for thait 
snppettrf Ajmrsen may eieot bnalingi, e*d 
may keep on the rabble-4ie amy employ. hii 
ph ynsal Ibsae in twenty dtfismnt'ways withmH 
doing any 4hing4lmt ia unlawfol. 

The oath eondades, "M4^ I. doi fnsthnr 
swnas, that naithnr fasfiei, foam, raiwmdi».off 
punishments, shall induce me tO'infom^.on, ni 
grie^videnaa against, anymmnber. or mmm 
bem, eoUnitivaly or inditadnally, foe anymda 

^^w **^^^n^vn^n^p^^^^^w a^^^^an^a? ^^* ana^n^^^^n earn jnna ^n^^^m^ ^^n» nnamm 

or.svmte aacietins, under tha.pnnishnwnt^ 
death, toube iuAlclad *on Jmi hy nny, mmBhar.or 
memba w . «f. anoh. s a eiel i c s*. SDhelpiiitn 
God^ and Imep mnetedfitfl*'' Itadmitnicnm^ 
itiaimpro|ierjfor any person .to Andmlnkni an 
bbligatmnnait fto.giTe midmse^ B«it4hni.ia 
notaooUigationrlnnanmntlraan>ns itinnnty 
it mjnisdflnmmnr mi Hi imli ish i wmtew 



*Npt»one nl 



laCsiihn'nB^hiaan 



not by folony, aiuder, or treason. 




1501 ^7 GEORGE tit. 

Read the oath from beginiung to end, and say, 
does it impose any obligation to commit 
treason T Itead the words a hundred times 
oyer, and still it will be imposdble to say that 
such is its purport. For it may be explained 
to mean an obligation to endeavour to obtain 
lawful objects, and cannot fairly be explained 
to mean any thing else. I am speaking of the 
purport of the oath, and not of what might be 
the intention of the parties at the time ; and 
if that oath does not purport treason, there is 
an end of the present indictment. 

The public prosecutor immediately adds, 
^ Which oath or obligation did thus purport 
ot intend to bind the persons taking the same 
to ooramit treason, by effecting by physical 
tooe the subfersion of the estaUished govem- 
menty laws, and constitution of this kingdom.*^ 
No doubt Uie prosecutor makes that averment. 
But I say the averment is utterly unfounded, 
and that the oath does not purport the obliga* 
tion vdiich he says it purports. It is for your 
lordships to judge whether it does so or not ; 
and if you are of opinion that it does not, then 
nodiing that the prosecutor affirms on the sub- 
ject can have the smallest influence, as he is 
not entitled to go to the jury, and leave it to 
thAsm to determine what is the purport of the 
oath; for that would be to take the relevancy 
of the indictment out of your hands into his 
own. 

The prosecutor has given you a ffloss or 
comment on the oath, and you will judge if it 
be coirect. The civilians nuTe a nickname, I 
forget what it is, for a gloss which extracts a 
meaning from the text exactly the reverse of 
what it naturally bears. Ibis gloss is precisely 
of that nature. 

In the oath there are the words, '^ I will 
support the same to the utdiost of my power, 
eimer by moral or physical wtrmgtK" in the 
prosecutor's comment the word force is substi- 
tuted for strtngjth, Tliat may be thought im- 
material, and to have proceeded from inatten- 
tion, but it is not so. It has been introduced 
in order to insinuate something different from 
what the oath purports. Strength in common 
language applies to bodily exertion. Force 
applies to an assemblage of armed persons. 
Although you can speak of an aimed force, 
you cannotspeak of an armed strength; acircum- 
stance which shows that the meaning of the words 
is not the same. The prosecutor by this clause 
means to insinuate, that the parties were to en- 
deaTour by an armed force toootain their objects ; 
a purpose which cannot be inferred from the 
woMs of the oath at all. It is further said, 
that the oath was to bind to the ^' subTcrsion 
of the established goremment, laws, and con- 
stitution of this "kingdom," but there is nothinff 
flrom the beginning to the end of the oath 
about eHtdimg' any thing. The parties 'bound 
themselves to use endeuTouis to ^ obtain 
ananal parliaments and universal suffrage; 
and these, if obtained in a lawful manner, are 
not a subTe'isibn of the government, laws, and 

The gUMS| tliexe- 



Tritd of WUtiam tdg^ 



[tea 



fore, has extracted a meanine from the text 
exactly the reverse of what uie words bear.. 
The public prosecutor cannot be allowed to' 
do this ; ana Uie libel on that account is irre- 
levant. 

But I go forlher, and I request you to ob- 
serve what may not at first sight be apparent, 
but which, on full consideration of the law, 
vfill immediate^ occur to all of vou, that even 
on the supposition that this oath did purport 
what the public prosecutor says it does, yet it 
would not purport an obligation to commit 
treason. For I maintain, that persons bound 
to effect by physical force the subversion of 
the established government, laws, and consti- 
tution of the kingdom, are not necessarily 
bound to commit treason. It b well known 
to your lordflihips that there are two great 
species of treason in law. We shall dismiss 
from our consideration at present a great many 
treasons, such as debasing the coin, murdering^ 
judges, Ibc. with which the public prosecutor 
does not and cannot pretend that this oafli 
could have any connexion whatever. There' 
are just tvro kinds of treason specified in the* 
statute of Edvrard Srd, to which it could pos-^' 
sibly refer; Ist, compassing the kinff^s death i 
2nd, levying war against him. I shall after-^ 
wards speak of a third treason, established by' 
a snbseauent act, the 36th of the king. 

In order to make an indictment for ei^erof 
these two kinds of treason relevant, it is not 
enough to say that the party intended to effect, 
or has effected by force, the snbversi<Mi of the 
government, for that b not necessarily com- 
passing the death of the king, or levying war 
against him. Though some of the acts pei^ 
formed in subverting the government might be 
overt acts of treason, they are not necenarily 
so. 

In order to establish the first kind of treason^ 
two things are necessaiy. You must have at 
wicked imagination in the mind, namely, tha 
compassing of the king's death ; and you must 
have overt acts, which the law considers as 
nroof sufficient to establish that imagination. 
But it is not laid here that the oath bound those 
who took it to compass or imagine the death 
of the king. I cannot illustrate my argtimoBt 
as it applies to the case before you, better thanr 
by appealing to an extreme case, with which yoa 
are aliwellacquainted-^die trials of theregiodes 
in the 1 7th century. Yon will recollect 1km the 
indictments were there laid ^* for compaldng 
and imagining the death of the king f* and the 
overt act of Siat treason was cutting off the 
head of the king. It would not Imve been 
relevant to have merely charged the act of 
putting the king to de^tb, as the crime of 
treason— the crime consisted in the imagiiMtion 
of the heart ; the death of the king was the 
evidence that that imagination existed. In the 
same manner, the subversion of tilie laws and 
constitution of the kingdom is not treason^ 
tfiougfa it is probable in effecting that subvert 
non overt acts maybe coBUQittod|irhidk iihid 
evidtnoeoftieasoab 



fir AJmHu U rimg mdiHofii Oatkt' 



1611 

TIm oUier tpeciat of treason which I 

tkmed, was levying wv againit the king. To 

ooDstitale that ciimey the use of phytic^ force 

in the snhvenioo of the laws or ooDStitutioo of 

the kiagdoiD is not sufficient. Ohe of two 

things is neoessaiy; either, on theone hand, the 

perMOS vsing th^ force most be assembled in 

we gnise of wajy as it is expressed in the 

Nonnan jargon of the law, mrkUi mgdtrgmrrmo ; 

they most proceed sub speck beUiy amie4 with 

warlike engines, with ooloots displayed, and 

to the sonnd of tnunpets and drums : or, on 

Ihe other hand, there anst be so great a mul^ 

titnde assembled, that their nnmben may €on»- 

pcnsate for the want oC the pride, pomp, and 

dicnastanceofwar. Certain pmons assembling 

together and proeecoting an illegal oljeotby 

mo^ does not nfecessazily oonstitutealevyingof 

war agahist the king, — unless it have the chano- 

teristics • I ha:Te mentioned, it is not treason. 

I am unwilling to detain you in k case of this 

kind by quoting authorities on the subject. I 

coold quote a great many, but I shall content 

myself with referring you to Hale and Foster, 

in their dmpteis on Uiis subject. 

There is a third treason, that of conspiring 
to levy war in order to accomplish certain ob- 
jectsy as to put the king under restraint, to in- 
timidate partiament, or force the pariiament te 
enact certaia laws. This treason was intro* 
dnoed hj the d6th of the king, e. 7.* 

I ask, then, whether this oath, gmating that 



A. D. 1817. 



Il6ft 



TOfriott aceompUshed by foree ; yet no lawyer 
will maintain that this is a case of high trea- 
son , that it is a case of compassing the king's 
death, or of levying war against him, or of 
conspiring to levy war. 
1 repeat, then, that although this oath did 

Surport what the pubhc prosecutor says it 
oes, but which most ceruiuly it does not, 
still it would not support the charge in the 
major proposition. If the prisoner was ac- 
cused of having subverted the constitution by 
force, could that charge go to trial as a charge of 
high treason? assursdly it could not; and for the 
same reason a charge of having administered 
an oath purporting to bind the taker to sub- 
vert the constitution by force, is not a charge 
of having administered an oath binding him to 
commit treason. 

I haTenow^Bonsideredthe oath as ** purport 
tag" to bind. That word, as I have endea- 
Toured to explain it, and I trust I have 
sonndiv explained it, implies nothing more 
than the meaning of the oath as it may be 
gathered from the words set forth. But then 
the public prosecutor says that this oath pur- 
ported, or mUmkd; and the question comes to 
oe. Does the use of the word itUend make any 
differenced I apprehend it does not; for the 
mtembnesii of a writing or speech in the or- 
dinary case is just the same thing as its pur- 
port. You will observe the Act of Parliament 
does not say, if the person administering the 



it pwpovta what the prosecutor affirms it pur^^ "baUi intends to bind to the commission of 



poffta^ iwposet an obligation to oemmlt any 
one «f these three distinct species of treason? 
I have sdfcady stated the reasons, by which 
jom lordships mast be convinced diat it does 
not bind the taker to co m pass or imagine the 
death of the king. Just as little does it bind 
him to levy war against the king, or to con- 
spise to levy war against htm. 

I have said 'that force may be used, nay, 
saeeessMly used, to subvert the constitution, 
and yet no war be levied against the king. 
I shall give an instance of this, which appears 
to me dedri^e on the merits of the present 
qneetioiK Suppose dmt the House of Lords 
(which of course they never will do) should 
pass a IhU to abolish the House of Commons, 
or their own House, as a branch of the XjOgisla- 
ture (and if ouch bill passed into a law, it 
would eflhet the complete sabversion of the 
co M sti t u tion); Suppose, in the next place, 
that this bill, vrhen carried to the House of 
Comnront, ^ould diyide the House equally, 
and of eonsequence its fete shoald depend on 
the easting vote of the Speaker. In those 
cntuBslaiices, if twenty or thirty individuals, 
not armed modoguerrmOf but widi stidu in 
their hands, shoald go down and compel the 
Sjpedcer by threats or violence to vote tor this 
fadl, — ^dbe bill having afterwards received the 
rmT as s e nt, would operate as the subversion 
of the constitution, and it vMmld be a snb- 



* Hade perpetual 
c. 6. 

VOL. xxxni. 



by Stet. 57 Cieo. 3rd 



treason, that his intention shall infer the crime. 
This is not the meaning of the statute; for it 
requires, that there shall be on oath or engage" 
useiU '< intending" to bmdf &c. It is the 
intendment of me oath, not of the peraon, 
whidi the statute mentions; and, thererore, 
though it were perfectly dear that the prisoner 
administered this oath, and that it was his 
intention to bind the party taking it to com- 
mit treason, yet that is not enough, if the oath 
itself do not bind to that effect. Now, that 
oamot be inferred from the words of the oath ; 
for if you interpret them fairly, thev mean 
nothing but what i% or at least may be, per 
feetly innocent 

But then, peihaps, vre shall be told that the 
public prosecutor vrill prove, by facts and dr- 
cumstanees, that the intendment of the oath is 
dillhrsat from the purport; and it occurred to 
me, that he has some such idea> from tlie dr- 
cumstance that he has dravm the narrative of 
his minor proposition in the way in which he 
has. I have various objections to this view of 
the subject, to which I must call your parti- 
cular attention. 

in the Arst plaOe yon will observe, that in 
the libel itself the prosecutor gives up the 
diar^ of M/aid^g, and relies on that of ovr- 
portmg altogether ; for in the clotw of the libel 
(where, though the same detail is not necessary, 
yet the efine must be set forth with the same 
criticd accuracy) he says, '*At least, times and 
pllices foresaid, the said oath or engagement^ 
or an oa^ or engagement to the eame purport^ 

M 



1681 



57 GEORGE IIL 



TriiU of WUiiam Edgar 



was- wickedly^ mBlickNuily, and trntofoarij 
admimsieredy or caused to be adnunistered/' 
<cc. He does not say it was an oath to .the 
aanoe intent; and Iherefovai unleas he esta- 
blishes that an oath of this purport was admi<- 
nistetedy he does nothing at all. But this is 
not the objection on mrhich I chiefly rely. 

It is an established principle in the law of 
Scotland, that the minor proposition shall be 
laid specifically^ and that every materiid cir- 
cumstance shall there be stated which is to be 
made the subject of proof against the pri- 
soner. The prosecutor is not at liberty to 
make out the intendment of this oath m>m 
fects^and circumstances to which he only 
alludes, in a vague manner ; the libel is defec- 
tive unkss these facts and circmnstances are 
distinctly specified. Would it be sufficient in 
an indictment under this statute to say, that 
the prisoner, at the times and places mentionedi 
administered the oath of allegiance, but under 
cover of that oath he intended to bind the 
party to commit certain crimes ? No. It 
would be necessary for the prosecutor to set 
forth what were the focts and circumstances 
which established the criminal quality. In a 
trial for a calumnious or seditious libel« would 
it be enough to specify that the prisoner re;- 
peated the first stanza of Chevy Chase, without 
specifying bow it happened that words having 
a natural, obvious, and innocent meaning, 
were in reality directed to a totally different 
and criminal object? The prosecutor must 
set forth the facts and circumstances from 
which he draws his inference, otherwise the 
indictment is not laid with that minuteness 
which the law requires. But your lordships 
win observe, that no fact is here specified 
from which such an inference can be deduced. 
It is stated in the narrative, that the prisoner 
''having wickedly, maliciously, and traitor- 
ously conspired and agreed with other evil 
disposed persons to break and dbturb the 
public peace, to change, subvert, and over- 
throw tne government, and to excite, move, 
and raise insurrection and rebellion, and espe- 
cially to hold and attend secret meetings^ for 
the purpose of obtaining annual Parliaments 
and universal suffrage, did then and there 
wickedly, maliciously, and traitorously admi- 
nister, or cause to be administered, or did 
aid and assist in 4he administering, to a great 
number of persons, an oath or engagement, 
or an obligation in the form of an oadi,'' &c. 
In the first place I say, that supposing the 
prisoner committed all these crimes, it is no 
necessary inference from that hypothesis that 
be intended to administer an umawful oath. 
Thev do not create the smallest presumption 
to that effect ; for a man may be engaged in 
treason himself, and yet have no intention to 
impose an oath binding his associate to commit 
treason. 

But there is another view of the case. Sup- 
posing it competent from facts and circum- 
stances to prove that an oath which does not 
purport any obligation of the nature libelled, 



(164 

was nevertheless intendad by the parties to 
impose that obligation, yet. the tacjts an4 
ciicumstanoes hero resorted to are of a kind 
which precludes the prosecutor from making 
use of them for that purpose. . If the nana* 
tive of this indictment were to be proved, it 
would infer that the prisoner had commilied 
treason; but. will your lordshfps permit the 
lord advocate to prove that a. man has been 
guilty of treason in order to convict him of 
a felony. I submit that this is manifestly in- 
competent. It is a general role in criminal 
law, and ia so laid down by Mr. Bumet in his 
work upon that subject (p. 611). His lath 
canon u})on evidence is in these wocds: 
"One cnme cannot be proved by evid«n^ as 
to another. | If A be charged with three .acts 
of theft, a proof of tvro of them cannot be 
offered in evidence of his guilt as to the 
third.'' Your lordships will see at once the 
principle upon whi^h this rule is founded, and 
indeea it is afterwards stated by the learned 
author whom I have just quoted. He say^ 
^Mt is to avoid the risk of a jury being influ- 
enced by the proof of one crime in judging of 
the proof of another." It would be most £m* 
gerous to the subjects of this country were it 
held, that because a man had perpetrated one 
crime of which he was not accused, the jury 
might conclude that he had perpetrated ano* 
ther of which he was accused. This may 
perhaps be a moral, but it is no legal ground 
of interence. If I know that my servant has 
stolen an article from me on one day, 'and if 
another is missed the day following, I ^ may 
very naturally conclude that he who stole the 
first stole the second also. But if the servant 
was tried for the second theft aloncr your 
lordships assuredly would not allow the pra^* 
secutor to go into evidence of the first. It 
could answer no purpose, but the improper 
purpose of creating a pr^udica in the mind 
of the jury. It is therefore a salutary and 
expedient rule, and a rule which I trust will 
always be receiv^, that one crime cannot be 
proved in order to establish another. As the 
prisoner therefore is charged with having ad« 
ministered an unlawful oath, and as for that 
crime and for no other a conviction is de- 
manded, the prosecutor cannot be allowed to 
prove in. support of that charge, that he cgm- 
mitted another crime, namely that of treason. 
Nothing could be more unmir or more con- 
trary to the principles of criminal law. 

Inaccurate opinions have sometimes been 
received on this subject. I have used the ar-« 
gument myself, that every thing is evidence 
which tends to produce belief in the minds of 
the jury. That is not the law of Scotland or 
of any civilised 'country. The law judges 
what should be allowed to produce belief in 
the jury, and, for the reasons which have just 
been assigned, it will not allow evidence of 
one crime to be used as evidence of another. 
Though the prisoner was convicted of being a 
traitor, the highest crime which can be com- 
mitted in any state, that circumstance could 



jesi 



Jor AdmbmUrtHg uiiiawfkt Oaths. 



A. D. I&17. 



Ll6d 



not hm penutted to have the towdlest influ- 
ence in convicting him of a lesser ' offence 
not supported by evidence applicable to itself. 

There is another leason why the narratiTe of 
die minor proposition cannot be competently 
sent to proof, k is there stated that* the pri- 
soner vras engaged in a treasonable conspiracy, 
hot it is not stated with whom he was engaged 
in that oODspiracy. Nay, it is not sUted that 
the other conspiiators were persons to the pro« 
secQtor unknown* Even upon the suppositiooi 
therelbrey liiat this charge nad been laid in the 
major, vriiich it is not, it could not be sent to 
proo^ because the prosecutor has not given that 
nfecmstion with regard to it, which according 
to the forms of die law of Scotland he was bound 
lo give, that the prisoner might be enabled to 
prepare his defcnace. Where a conspiracy is 
chaiged against an individual, the other persons 
€onspirii% 'most be specified, or at least it 
most be stated^ that those persons are unknovm 
to dw prosecutor; if eren that is sufficient. 

If that remark is applicable to the charge of 
coDSptTUcy, how mucn more so is it to that of 
treason T To oonvict.a person of treason, many 
requisites most occur which are not found here. 
No man can be put upon trial for that crime 
unless a bill is found against him by a Grand 
jury ; and after the bill is foond, man^ forms 
must be observed unknown to the criminal law 
of Scotland in other cases. For example, the 
prisoner is entitled to challenge a certain num* 
ber of his jury peremptorily, and without cause 
Aevm. He has various other privileges unne* 
cessaryie be' stated. - But none of these pri- 
vileges have been allowed to the prisoner here, 
becau s e he is put upon bis trial for a felony. It 
is impossible that your Lordships will allovr 
lum to be tried for treason by our forms of 
procedure, when it is enacted, by special 
statute^ that treason can only be tried by the 
IbrmS of the law of £ngland. 

It is no answer to this argument, for the pro- 
secutor to say, we are going to try the prisoner 
for treason, bat we are not to punish him for 
treason. We'Ssk for no other punishment but 
that which is applicable to the crime laid in the 
mgor propositMu of the indictment. If the ju- 
ry find the prisoner guilty of treason, though 
lie escape the punishment, his character is blast- 
ed, be is a convicted traitor, and he suffers an 
injury vrfaich the prosecutor is not entitled to 
inflict. On the other hand, suppose him to be 
acquitted under this indictment, the acquittal 
is of no* benefit to him, for not only might his 
diaracter be ruined, but he may be again 
btoufht to trial for treason in a regular way. 

I4>rd Advocate, — ^He cannot be again brought 
totiial* 

Mr. €>fmn$tam. — ^The lord advocate thinks 
diflbentiv from me^ but be is wrong. ' If the 
pfisoiier be acquitted of administering the un- 
lawful oalh, that act cannot be laid as an overt 
act of tseaeott in an indictment for that crime. 
Bsi^'ltefie tnasbnable practices are stated for 
dir{Pttrpofe4>f prons^^that the oath admini- 



stered imposed an obligation to commit treason. 
Now the 'lord advocate cannot be prevented 
from trying the prisoner for thesie practices as 
treason, dthough the prisoner shouM be ac- 
quitted of the present charge. The words of 
die act are '^rronded also, and it is hereby 
declared, that any person who shall be tried 
and acquitted, or convicted of any offence 
against this act, shall not be liable to be indict- 
ed, prosecuted, or tried again for the $ame offence 
or fid as hig^ treason or misprision of high trea- 
son." 

From these words it appears, that after a 
trial on this indictment die prisoner cannot be 
tried for treason on the ground of having admi- 
nistered this oath, but 1^ may notwithstanding 
be tried for treason on account of any one of 
the acts which his lordship narrates in the mi- 
nor proposition, as evidence that the prisoner 
and nis associates were engaged in treasonable 
practices. 

This being the case, what would be the result 
of a trial under this indictment, supposing 
that the prisoner is acquitted P It would be 
just a precognition, and'what is more, a public 
precognition taken, for the purpose of convict- 
ing him afterwards of high treason. And as 
he might be tried twenty times for administer- 
ing unlawful oaths, all these trials might be 
vrith no other view than that of trying lum for 
hi^ treason at last. I put it to your lord- 
ships,^ if o'ppression of this kind could be 
endured in this country,— if there would not be 
an end of all liberty and all security? 

I lay it downltherefore as dear law, that one 
crime cannot be used as proof of another. 
There is nothing set forth in this libel in order 
to prove the wtent of the oath as contradistin- 
suished from itsptirporl, except facts which in- 
fer other crimes, and which, on that account, 
cannot be admitted to proof. The whole nar- 
rative of the minor proposition must be blotted 
out as incompetent, and that being done thera 
is notfaingleft but the words of the oath, and these 
words do not purport any obligation to commit 
treason. The prosecutor may aver the contrary ' 
— he may say, that whatever may be the appa- 
rent purport, thereat intendment was an unlaw- 
ful ooUgation : but if he makes this averment 
something further is necessary ; he must state 
specifically the facts and circumstances by 
which he is to prove, that words, innocent ia 
themselves, were used with a guilty intent ; 
and these fiicts and circumstances must be 
relevant to ground that- inference, and com- 
petent in themselves to be proved. Further, 
as already said, it is not the intention of the 
parties, but the intendment of the words which 
must be criminal. 

But if the nanradve of the minor proposi- 
tion be strode out, and I have shovni that it 
must be so, then there is no specification of 
&cts vvhatever to establish an intendment 
different from the purport (^ the oath. What 
s^ificadon is necessary in the minor proposi- 
tion of a criminal indictment according to the 
law of Scodand? AU our authoriUes say that 



167] 



57 GEORGE III. 



Trial of fViitiam Edgar 



[168 



the minor pnmositioa must set forth a AiU and 
accurate detail of all the dicumstances matetial 
to the case. But if the lord advocate atten^pts 
to extract and elicit from innocent words a 
different meaning from that which ^y obvi- 
ously bear, and does not specifytbe cutnun- 
stances from which he infers that hidden 
meaning, then the minor proposition b im- 
perfect for want of specification, and the Ubei 
u irrelevant. 

I had formerly occasion to refer yonr lord** 
ships to the practice in trials for perjury : and 
it appears to me that there is a great affinity 
between trials for that crime, and the present. 
Perjury consists in taking an oath which pnr^ 
ports falsehood : the present eritnie consists in 
administering one which purports an unlawful 
obligation. In both there is the use of an or- 
dinary solemnity, with the criminal intention 
in the one case to deceive, and in the other 
case to bind to the commission of a crime. 
The crimes are analogous. In a caae like the 
present, which is new, it is most desirable to 
refer to analogous cases, in order to gather 
' what are the rvdes of proceeding. Let us con- 
sider then what is your proceeding when vou try 
a person on a libel lor perjury. Mr. Hume, 
in stating what are the specifications necessary 
in a libel for peijury, observes, that ** it is 
more especially requisite, that in all process 
for perjury the prosecutor be not allowed to 
lay his libel generally, or in ambiguous tenns; 
since otherwise he would take the cognisance 
of the relevancy of the charge to himself, out 
of the hands of the Court^ to whom of right it 
belongs. He has to explain, therefore, wherein 
it is that the falsehood lies, and must support 
(or as we say, qtu^) his charge with such a 
statement of the circumstances of the £&ct, as 
justifies his averment of a fidse oath having 
been taken, and shall ground a clear inference 
(if they be proved) concerning the situation of 
the panel's conscience on the occasion." It 
thus appears, that in a charge of perjury, in 
order to make the libel relevant, it is not 
enough to assert that the prisoner has sworn a 
false oatlu The prosecutor must point out in 
detail the circumstances on which he rests his 
averment, that what was sworn is £dse. If that 
be the case in a trial for perjury, — in the analo- 
gous crime now in question, if the prosecutor 
libels words in themselves innocent, he must 
specify facts relevant and competent to be 
proved, in order to make out the proposition 
that these words were used with a guilty in- 
tendment — an intendment understood by both 
parties. Therefore unless you require a speci- 
fication of facts, which I apprehend is essenti- 
ally necessary to extract a guilty intendment 
from the words of this oath, in themselves in- 
nocenlj you depart from one of the best es- 
tablished rules of the law of Scotland. What 
is said by Mr. Hume as to trials for |>eijury, 
is equally applicable to a trial under this act. 

I have sJready taken occasion .to observe^ 
that one of the most vaiuablb statutes in our 
code is the statute of Ut Maxy, cap. 1. It is 



in our code, for it b a law regaidmg treesoo, 
and of consequence introduce along with all 
the other laws of England upon that subject 
by the 7th Anne, cap. 21. i prsY your lord- 
ships to attend to the preamMe of tliat statute 
of the 1st Maiy. ** Forasmuch as the state ni 
every king, nJer, and governor of any realm, 
dominion, or commonalty, standeth and con- 
sbteth more assured by the love and frvour of 
tiie subjects toward their sovereign ruler and 
governor, than in the dread and fear of laws 
made with rigorous pains and extreme pnnisb- 
ment for not obeying of their sovereign ruler 
and governor : And laws also justly made lor 
the preservation of the commonweal, without 
extreme punbhment or great penalty, are more 
often for the most part obeyed and kept, than 
laws and statutes made witii great and ex- 
treme punishments and in special such lawa 
and statutes so made, whereby not only 
the ignorant and rude unlearned peofde, bnt 
also learned and expert people, mindinK 
honesty, are often and many times tnpped and 
snared, yea, many times lor words only, with* 
out oUier fiict or deed done or perpetrated : 
The queen's most excellent majesty, calling to 
remembrance, that many, as wdl hononralile 
and noble persons as otherof good rep«tation» 
within this her grace's realm of England, have 
of late (for words only, withovt other opinion, 
foot, or deed) suffered shameful death not ao* 
customed to nobles ; Her highness, therefore, 
of her accustomed clemency and mercy, mind* 
ing to avoid and put away die occasion and 
cause of like chances hereafter to ensoe, trust- 
ing her loving subjects will, for her deniency 
to them shewed, love, serve, and obey h^ 
grace the more heartily and futhfully, than for 
dread or fear of pains of body, b contented 
and pleased that tne severity 'Of such like ex- 
treme, dangerous, and painful laws, shall be 
abolished, annulled and made fhistrate and 
void." This preamble explains the extreme 
danger and mischief arising from laws inflict- 
ing the pains of treason on offences whidi are 
not accurately defined^ and more particolarij 
for words spoken, and accordingly the whole 
body of constructive treasons were swept 
away by that act. 

Now, the statute upon which the present in- 
dictment b founded introduced a constructive 
felony, on which it inflicts the same punish- 
ment as that which is inflicted in treason, at 
least in all material respects the same. I did 
not read the preamble of the act of queen 
Mary, to throw blame on the statute now 
under consideration, bnt to show the difficulty 
and danger attending the application of every 
law of this description, as tne legislature itself 
has clearly expressed in that preamble'. But 
the statute having been enacted, what b the 
proper correcdve for the evib to whidk I 
allude f I do not know what b the prac- 
tice on the other side the Tweed; tot I 
do. not know the detaib of ciisninal pn>- 
eedure there, bnt I know that in Scotland 
the corrective is to be fbmid iaeur foons of 



1691 



far AduuKhUriKg taUmfiil Oaths. 



A. D. 1617. 



iiio 



crunnnlpiooedim; and wlatererdefiKti there 
may- be in the law of Scotland^ there are aome 
exceUcnciefy and one of them is that minnte- 
Beaa of ^iceification which the public proeeco- 
toris boond to obeerre in his indictment. Hie 
nroper piecaation for preventing this statute 
Kom being made a source of oppression and 
iiyostioe^ is to observe oar forms of criminal 
proeedore; and I maintain that one of our best 
£mns will be neglected^ if yon allow a proof of 
the minor proposition here to go to a juiy^ 
when there is no specification in the hbel to 
show tlwt the wofds ef the oath were nsed in 
n sense different from their ordioary sense. 
Their ordiniT sense as I have endeavoured to 
prove, or rather as I think must be manifest 
aft first sight, is perfectly innocent ; at least it 
is not an obligation to comnut treason. If this 
libel be allowed to go to trial under other ' 
jndgesy the administration oi any oath* of the 
oath of allegiance itself might be made the 
mund of a prosecution under this statute. 
Tbe author whom I have already bad occasion 
to qnoce, says, that the nile of the minor pro- 
position containing a specification of all the 
nets on which the charge rests, was at- 
tended to anziooslyy even in the worst times. 
We know well whai are the times to which he 
anodes, indeed they are pointed out by the 
defisinns to which he refers ; namely, the pe- 
riod between 1679 and 1668, when your books 
of adioamal are stained with tbe most atroci* 
one murders perpetrated under the colosorof 
law-^y judges the most unprincipled that 
ever sat upon that bench. If in that period, 
and jnndet these judges, the rule in question 
was not departed from even in the trial of 
slate criuMM^ it will not be departed from 
in these liberal and enligfatenea days, and 
while -yonr lordships preside in tliia Court. 
On these grounds, I relate to your lord- 
ships with confidedce what is the genuine 
eoBvictJon of my own mind, that this is not a 
relevant indictment, and that if it be sent to a 
jury, a precedent will be established fraught 
with the greatest danger, 

[Mr. Cranstoun made an apology for occu- 
pying the Court so long.] 

Lord Justice Clerk. — ^I express the opinion 
of the Court, that there Is no reason for such 
an apology. We have all heard the very able, 
eloquent, and argumentative pleading for the 
panel, with the most perfect satisfaction. 

. Mr. Dt mumn d. — ^A very difficult task has 
devolved itself upon me^ thiat of answering one 
of the ablest arguments which I ever had oc- 
casion to hear ; and I have this impression 
so stronglv on m^ mind, that unless I had 
some- confidence m the merits of the cause 
whidh I am to support, I should feel the 
greatest diffidence in attempting to answer the 
speech of the learned gentleman. I trust, 
however, that the ease will- speak pretty 
Strongly for itself; and my learned friend who- 
i#.io foitow me, will, aaich More ably than I 



can do, supply what I may happen to omit. 

The charge against the panel at the bar is 
for a statutory offence. He is charged with 
administering an oath of a particular descrip- 
tion. The rules of law are clear with regard 
to the manner of describing a criminal act. The 
words of Mr. Hume are, ** That a libel is not 
good, unless it give such an account of the 
criminal deed as may distinguish this particu- 
lar charge from all other instances of the same 
sort of crime, and thus briuff the panel tb the 
bar sufficiently informed of that whereof he is 
accused.^ 

If this description of the duty of the prose- 
cutor be correct, I apprehend this indictment 
must dearly ffo to trial; for it sets forUi the 
crime charged in a manner to distinguish it 
from ev«ry other instance of the same sort of 
crime. 'Die criminal deed is the administer- 
ing ef the oath, and the oath itself is set forth 
in the indictment. £ven if it had not been in 
the power of the prosecutor to obtain the terms 
of the oath, yet, by this statute, it was compe- 
tent to him to charge its purport. But the 
prosecutor has fortunately had more in his 
power, for he has obtained the oath itself, and 
he has recited it at length in the indictmeqt. 

Mr. Hume proceeds afterwards to describe 
the manner in which the criminal deed should 
be set forth ; and as the learned gentleman 
who went before me dwelt some time on this 
subject, I shall be under the necessity of 

Suoting at length Jdr. Hume's views of the 
uty of the prosecutor. {Mr. Drummond here 
read from vol. 3, j[). 325, and subsequent pas- 
sages, and maintained that the description of 
the offence in this indictment was sufficiently 
specific] 

I apprehend that the prosecutor is correct 
as to the times and places, and the individuals 
to whom the oath was administered, as no ob- 
jection has been stated to the indictment with 
regard to these points. And, considering the 
particular character of this crime charged, and 
that it is of a secret nature, and extremely 
difficult to detect, I think your lordships must 
be satisfied, that the prosecutor has given aa 
foil and particular a description of it as the 
panel could expect. 

This is a crime, in many respects, of a yery 
peculiar character. It is necessary, indeed, 
as was correctly stated by the learned gentle- 
roan, that the oath itself should bind to the 
commission of treason, or of some capital 
felony. It is not sufficient that the party ad- 
n^inistering the oath, or the party taking it, 
should have treasonable, or other criminal in- 
tentions ; but it is necessary that the oath itself 
should b4nd to the commission of treason, or 
some other crime. This was most correctly laid 
down by the learned genQeman, and any infer- 
ence which the prosecutor may think himself en- 
titled to draw from the oath willnotbe sufficient, 
i£it do not clearly appear that the oath itself is 
of the precise purport necessary to inculpate the 

* 3 Comm. 310^ 



171 j 27 GEORGE III. 

nanel on the lUttute' fouiKled upon in th^ iih' 
dictment. On this pari of die cate I am ready 
lo meet the learned eentleman ; for it appean 
to me very clearly tnat this oath does contain 
an obligation to commit treason, and that, 
upon a rair construction of it, no man of good 
tense can firil to be' of this opinion. The oath 
fliysy ** I win penefere' in my endeavours to 
obtain for all the people in Ciieat Britain and 
Ireland, not disqualified by crimes or insanity, 
the elective franchise, at the age of twenty-one, 
with free and equal representation and annual 
pariiaments; and that X ^Q support the same 
to the utmost of my power either by moral or 

Sysical strength, as the case may require.'' 
le learned gentlem'an stated, that the oath 
binds the person ' taking it to support the en- 
deavours made to obtam annual parliaments 
and universal suffrage, and he stated so cor- 
rectly. He observe«i tiiat the oeih could not 
bind them to support what was not in exist- 
ence, and that therefore it was to obtain, not 
lo support, annual parliaments and universal 
suffrage, things not in existence, that the 
oath had been administered and taken. It re- 
mains for you to consider, whether the oath to 
support with moral and physical strength 
endeavours made to obtain annual parfia- 
ments and universal sufVaaiB, is an oath which 
eobjeets those administering or taking it to 
the charge of administering or taking an 
oath purporting to bind those taking the same 
to commit treason ? and upon that narrowed' 
construction of the oath I join issue with the 
opposite counsel. 

It was said verjr ingeniously, that physical 
strength may be mnocently employed m many' 
wavs for the support of endeavours to obtain 
vnhrersal suffrage and annual parliaments^- 
that it may be employed in the erecting of 
hustings for meetings to petition parliament on 
the sulnect-— that it may oe employed in run- 
ning about and soliciting members of the 
legislature to give their support to such peti* 
lions. These are certainly exercises of physi- 
cal strength, but not of the kind referred to in 
the oath. The oath binds the persons taking 
it to use aU their i^jsical strength, as the case 
may require. The instances which have been 
mentioned of the application of physical 
strength are not the only ways in which physical 
strength may be employed in order to obtain the 
objects spoken of; yet, by the terms of the oath, 
there is no limitation as to the kind of physical 
strength which the parties were to use. • Tliey 
were to use the whole of their moral and 
physical strength; and the terms force and 
strength have beretlie same meaning. If an 
innocent purpose only had been in the view 
of these persons, then why were they anxious 
for concealment ? — What follows in the oath ? 
** And I do further swear, that neither hopes, 
fears, rewards, or punishments, diall induce 
me to inform on, or give evidence against, 
anv member or members, collectively or indi- 
viaually, for any act or expression done or 
nude, in or out^ in (his or -similar societies. 



Trial of fVWmmEJgar 



cna 



under the punishment of death, to be inflicted* 
on me by any member or members of such 
societies. So help me God, and keep me 
stedfest.*' This is a remarkable part of the 
oath, and surely such concealment was not 
necessary in erecting hustings, or doing aAy 
of the things which were suggested by_tbe 
learned counsel in his illustrations. There 
can be no use for such concealment, where 
lawful means are to be employed for the attain- 
ment of lawful objects. Every person vrfao 
reads the oath must see that it proves in the 
strongest manner, that illegal objects were in 
ti)e view of the parties. This is obvious, with- 
out travelling beyond the four comers of the 
oath itseUl It is so obvious, that no argument 
can prevent the indictment from going to trial. 
The oath alone, without going to any other 
article of evidence, is directly crimtoal, and 
implies that the purpose for which the meeting 
was assembled was an illegal purpose, and the 
association ah illegal association. 

It was said by Uie learned gentleman, that 
the word '< force*' had been ^ artfiiify*' subeti- 
luted in the indictment for the word **• strength.*^ 
Bnt according to my construction, they have 
no different meanin^-<-they are synonymous.- 
But I may answer his statement bv a' remark 
of his own which is well founded, that any 
inference from the oath adjected in the indict- 
ment does not signify, unless the oath itself 
neeemarily imply that inference. The artifice, 
therefore, if there bad been any (and there 
was assuredly none), could have no effect, as 
your lordships are to judge of the oath itself, 
and not of the oondusionsHlrawn from it by 
the prosecutor. 

It is also libelled in the indictment (and to 
the proof of that no objection has been stated), 
that this oath was administered at secret meet- 
ings. To a proof of this averment, no object 
tion has or can be made ; and if it shall be 
proved that this oath was administered at a 
secret meeting, this is an additional circum- 
stance of evidence whidi must go to the assise, 
to show that the purpose of the oath' was 
illegal and criminal. That the oath was ad- 
ministered at a secret meeting is charged, I 
observe, with regard to the meeting first 
libelled on in the indictment. 

It is argued, that the narrative of the indict- 
mentr— the general statement of treasonable 
conduct which precedes the statement of the 
particulars founded on^is not relevant to be 
proved. I apprehend, however, that many 
examples mint be given from the daily prac- 
tice of the uourt'of such narratives as this 
going to a jury. One example that occurs to 
me--H(I am sorry that I am under the necessity 
of speaking from memory alone, as I am cer- 
tain that it I ' had had timeto make an investi- 
gation, I could have produced many examples 
on the point)— an example, I say, occurs to 
me,* which is probably in your recoHection. 
The cise I allude to vras that of a charge for 
uttering ^rged notes. The forgery bad been 
committed ia Englebd ;-^that qrifli^ therefoie. 



173 J 



Jar Aimimleri»g vAt^ OaOs. 



A. D. 1817. 



1174 



tbe Court had no joiisdlction to tiy. Yet yon 
tilmitted the statement of the forgery in the 
narrative of the indictment m modam proialiom$ 
oCthe dine. of uttering the forged notes in 
Scotland, and as relevant to infer the know- 
ledge of the forgery in the ntterer. This is 
setUad lair; and the oath here charged is at 
least as intimately connected with the . state- 
ment of treasonable practices mentioned in the 
narrattye^ as the crime of nttering forged notes 
was with the perpetration of the forgery! I 
am not going too far in saying that the oath 
is nothing ebe than an OTert act of a general 
treasrmable conspiracy, opt now charged 
against the parties. The whole import and 
constraction of the present charge^ indeed, in- 
volves the existence of another crime. The 
administration of the oath is a criminal act, 
binding the takers to ciu9»iC .aoptl^ar cdme ; 
and how is it possible to separate, the two? 
How can any circomstanceii regarding the one 
be eKplained without mentioning the other P 
We are bound to show that there was treason 
which would have been speedily matured, if 
the purposes of the persons who administmd 
and who took the oath had been carried into 
effect. We are to prove what they were 
hatdiiiig— what they intended— nand it is im- 
possible to lay out of .view the preparations 
they were making for. committing treason, in 
^caking, of what they bound themselves to 
aocompUsh. Thus the rule of not admitting 
proof of one crime in evidence of another, 
must be received with some qualification, .and 
it btf always been so in practice. [Mr . Drum- 
nond here referred to Hume's Com. vol. 3. 
p. 411, and. to the case of Thomas Somerville, 
who ^as tried for perjury in 1813, as men- 
tioned in the corresponding part of the supple- 
ment, p. 2^6.] There, you have (evidence of 
one crime admitted to.prove another, although 
the one was quite different from. Uie other. 
But here the crimes are intimately and almoet 
ittseinrably connected. It is an established 
rale in the English law books, in cases of trea- 
son, not only that one overt act not laid as a 
charge, may be adduced as proof of one that 
is laid, but that a general proof of rebellion or 
conspiracy is allowed before proceeding to the 
particular acts charged ; and the well known 
case of Strafford* was quoted and received as 
an authority on this point in the trials of Wattf 
and Downle,t — ^in which the existence of a 
treasonable plot was allowed to be proved be- 
fore the overt acts charged. Hie principal 
3uestion is, whether, the matter offered in evi- 
ence.be pertinent to the point in issue f 
It was said that we are not entitled to try 
a. man for treason in this form, and that there- 
fore we cannot indirectly try the treason as 
pioo(oCaift>ther crime. * I appeal, in answer 
to this,- to the act of parlian^nt under which 
we are now proceeding. The whole act, and 



< »■ 



♦ 3 How. St. Tr. 1381. 

t 2 How. Mod. St. Tr. 1167. 

I 8How. Mod. StTr. 1. 



particttlaily the last daose,. piooteds on the 
understanaing that we are entitled to go on as 
we are doing in this trial, althoogh the crime 
tried be treason. . < 

^ Provided also^ and it is hereby dedared, 
that any person who shall be tried and ao- 
quitted, or convicted of any offence against 
tfiis act, shall not be • liable to be indicted 
prosecuted, or tried again for. the same offence 
or fact, as high treason, or , misprision of high 
treason ; and that nothing in this act contained 
i shall be construed to extend to prohibit any 
' person guilty of any offence against this act, 
and who shall not be tried for tiie same as an 
offence against this act, from being tried for 
the same as high treason, or misprision of high 
treason, in sudi manner as if this act had not 
beeu ntadeh" 

Even iflhiseet had aever existad, I shonid 
have been prepared to maintain, on the or- 
dinary rule^ of law, the competency of trying 
under a lower denomination of crime : what 
might have been tried as treason but the dause 
now quoted is quite conclusive. There is, 
therefore, nothing in the ciroumstanoe that the 
criminal proceedings set forth in the- iiarrative 
of the indictment happen to be of a treasonable 
nature, that can make any difference in the 
case ; and I submit, that as they form part of 
the res gata at the time of administering the 
oath, and, naturally enter into the history of 
the transaction, they ought to be admitted to 

{>roof, and found relevant with the rest of the 
ibel. The^ are intimately and inseparablT 
coi^iected with the proof of the crime cnar|;ed, 
and afford the clearest and most relevant mii» 
da than can be imagined of the guilty purpose 
of the panel. It seems unnecessary to add 
that if it be relevant to introduce this statement 
narraiivif the same specification is not requisite 
as if it had been made the "subject of a sub- 
stantive charge ; and I should not have made 
this remark at all, unless there had appeared a 
disposition to argue upon this narrative, as if 
the relevancy of it were to be tried by the 
same rules as a charge in the indictment. . . 
It was said by the learned gentleman, that, 
the particulars charged as what the parties 
bound themselves to commit, would not have 
amounted to high treason even if they had 
been carried into effect. But how it can be 
maintained that the employment of force to 
accomplish public measures of this description 
is not treason, I cannot conceive. It appears 
to me to be beyond the ingenuity of even the 
learned gentleman himself, to persuade any 
person, that, a public measure of any sort may 
DO accomplished, not to say the fundamental 
principles of the constitution subverted by 
force, by a number of persons conspiring to« 
getherfor that purpose without levying war 
agaist the king. According to my view of. 
the law, I might have been entitled to charge 
the administration of the oath itself as h«h^ 
treason. The wor^s.of the statute 36 G. ifl^ 
c. 7. seem completely in point, as tq the trea-; 
sonable nature of the association and the oath.. 



174] 



57 GEORGE III. 



Trial of WaUam E^ar 



1176 



^ tf asy person or penonn, fcc. shall obmpttsSy 
, imagine, meat, dernse, or intend deam or 
destraottbnj^ See. kc* or to deprive or depose 
him, &c. or to levy war against his Majestj, 
in order, by force or constraint, to compel him 
to change his measures or counsels, or in order 
fo put any force or constraint upon, or to in- 
timidate or overawe both Houses, or either 
House of Pariiament-«--4UDd suoh compas* 
sings, imaginations, tnTentions, devices or in^ 
tentions, or any of them shall express, titter, or 
declare, by publishing any printmg or wnting, 
or by any overt' act or deed^"- £vea under 
the first head of the statute of Sdward III. 
it might have been maintained to be treason 
to conspire for the <cttainment of universal 
anffirage and annual Parliaments by foroe; and 
the oath and secret meeting might have been 
given in evidence as overt acts. 

But it is unnecessary to enter upon the 
question, whether the acts libelled as having 
been done, might have justified a charge of 
treason. It is «iough for the present purpose 
to say, that if the force which the parties bound 
themselves bj this oath to use, for obtaining 
annual parliaments and universal suflVage, had 
been actually employed for those purposes 
. (which are not only of a public nature, but 
utterly subversive of the whole frame of the 
constitution) this would clearly have been that 
species of treason which consists in levying 
war against the king. 

It vras said, that the coneluding part of the 
indictment does not correspond with what 
goes before, as the charge of intending is omit- 
ted, and that of purporting only relied upon. 
It is .true, that the prosecutor relies completely 
on the charge of purportmgy because the pur- 

Eort and open meaning of the oath is so clear ; 
ut the proper answer to this critical objection 
is, that it is quite unnecessary and unusual to 
repeat in this part of an indictment the whole 
expressions previously used, as it sdways bears 
such a reference to what goes before, as to 
point the attention to the preceding description 
as that which' is here spoken of. Thus, ^' Times 
and placesybreaauj the said oath or engage- 
ment,'' &c. This is the usual style, and it is 
not customary to repeat all the preceding 
epithets and qualifications which are included 
and held repeated by the reference to what 
goes before. 

I am sensible that there are many things 
which I have omitted, but I will not detain 
your lordships longer. 

Mr. SoUcUof General. — In concluding the 
debate on the part of the crown, I must be 
pardoned for observing in behalf of the prose- 
cutor, that nothing is or can be more remote 
from his intention, than to introduce into the 
law of the land any of those constructive 
treasons tp which reference was made by my 
learned friend at the commencement of his 
speech for the panel. Nothing can be more 
remote from the intention of the public pro- 
secutor in Scotland at any period. And if 
such a profligate design existea, it would meet 



with a sure and signal defeat from the ind^ 
pendence of the bar,^and firaim the vigour and 
integrt^ of the court. 

The present prosecution does not involve 
any eharge of constructive treason. It is 
founded upon a statute of recent introduction ; 
a statute quite plain and explicit; a statute 
which, very unfortunately for tne country, the 
late comiption of the public mind and of ^e 
moral habits of some part of the population 
has rendered necessary for the protection of 
the state. 

In answering the argument nudntained for 
the panel, I must take leave to recai to your 
lordships' notice two of the species of treaeoov 
which were not introduced, but vrell definedv 
by the statute of £dward III. These two 
species of treason are,— ^irtf. Compassing the 
death of the king^ fe60iu%, Levying war 
against the king. 

Your lordships are all aware, that by dedar^ 
ing and defining the first species of treason, 
the legislature Stowed upon a mental act — 
upon the imagining, or compassing ip the 
mind, the death of die king— the character of 
a completed crime, punishable by a luj^ sane* 
tion ; and it provided, that in the case of this 
highest offence against the state, mere intMH 
tion (which in other -cases is not cognizable by 
the criminal tribunals to that effect) shoiM 
held the same rank in the scale of guilt kmi. 
of punishment with a completed act. It rein 
dered the compassing or imagining^ Uiemere 
conception or design of destroying the king^ 
punimable with the pains of treason. There 
IS a remarkable distinction, therefore, between 
this class of erimee and all others. It may be 
said generally, almost without exception, that 
the mere compassing of any other -act, the 
mere compassing of murder, for- instance, the 
criminally imagpining suoh a deed is not a 
cognizable crime, at least is not cogniiable as 
the crime of murder. But in this department 
of the law the ease is different. The imagi- 
nation of the king's death is the statutory 
crime> and nothing more is required than an 
overt act, by which this imagining is infened 
or proved. 

As to the next species of treason^ that of 
levying war against the king, I do not mean 
to give an opinion upon die question, whether 
the mere imagining of it, as proved by the 
administering or taking an oath, or by any 
thing short of the total or partial execution of 
the act of levying war, would be held to foil 
under the statute. I am not here called upon 
to offer any opinion on sneh a question. But 
you wilt see by and by the reason why T 
have ealled jc^t attention to the drcomslancea 
which have now been stated. 

On die supposidoa, that by the former and 
existing law it was donbtfiil whether in the 
geneml case the mere intentio% or imagining; 
or compassing to commit any treason, when 
not reauced' into action, is in itself treason, 
the statute of the 52d of the king was intro- 
duced, the object of which was, to bring the 



Jbr Aimmideriiig mlm^ Oaikt. 



«7Y) 

frfftifffr €f committiiig treasoD, when so &r 
matuTed as to be reoaeied obligatory hy an 
oath, into tlie class d crimes pooishabk 
with death. Bjr tbe previefiis law, it might 
perhaps be donbttiil tihether such criminal in- 
tention could in oertata cases infer a capital 
fNuishaient. Bot when the intention is ap- 
piozimated to esecotion by an oath, and is 
manifested by snch as overt act, when it is 
accompanied by an oath, to commit and con- 
ceal it, tiie legislature has enacted that it shall 
be pfinished as a capital crime. That the act 
described so distinctly in the statute is a 
iiigb dfence, an ofenoe from which the great- 
caa>danger to the public may be apprehended', 
and by -which the deepest depravity of heart 
in the perpetiator is proved, no man will 
▼entnre to aispute. I can see no reason why 
the highest sanction should not be affixed 



4. 0; xm- 



well as its i^^plication to the picvtotts law, and 
its necessity m the drcumstsACM and chancte? 
of the countiy, on which I have insistei^, to be 
correct, J solicit your attention to the first, and, 
in my mind, by far the most important objeo* 
tion Uiat has been made, as to the mode in 
.which the libel is laid. That ob|ection con- 
sists of two points in law, as I understand it 
In the firit place, that the oath taken does not, 
upon a fidr construction of it, amount to the 
oflenoe stated in the major proposition ; or, in 
other words,' to the statutoir offence. And 
thett, supposing it did, it is alleged, secondly^ 
that in the indictment there is a vrant of 
specification of circumstances, and detail of the 
manner in which the intended treason was to 
be committed. 

I call your attention, in the jirs< place, to the 
terms of the oath, for I have no hesitation 



hich are used. '^That every person 
who shall, in any manner or form wluitsoever, 
adviaister or cause to be administered, or be 
aiding or assisting at the administering of any 
oath or engagement, purporting or inteodiiig 
to bind the person taking the same to commit 
aay treason, or nraider, or any felony punish- 
able br law with death, shall, on eonvictioo 
thereof by due course of law, be adjudged 
guilty of fiilony, and Mbr death as a felon, 
without benefit of deigy.*' It is plain, in 
looking to tbe terms of the statute, that it did 
notcoi^eniplatean ad uriiich has been done^ but 
one wlucfa is to be done ; which exists only in 
intention, bnt which, at the same time, exists 
in a amtnred intention; an intention passing 
froB the heart of one man to the heart of 
anodier, and attended by the obligation of an 
oadi te the eonoealment and accomplishment 
ef the jBu^ined crime. And sure I am, that 
it iaimpoenhle for aoy<one taking this view of it 
not to be of opinion, that the act defined is not 
BMrely a statutory crime, but must be feU and 
eeafaMed to.be a crime by the common sense 
aadimiversal feelingsof dvilixed man. At all 
tiaMsand in afi pUiMs it is a crime, and in no 
plaeeor comtrj is it more criminal than in 
Holland, utere there exists, in many districts of 
it at leasts a religious feeling amountiag-almost 
to fanaticism ; and .where a union of political 
and laligSons pasaions mast create in tha vul- 
gar mfaid a darker, and more atrodous cha- 



tlie commission of it. I submit that all this is I in sa^ng, thai if this oath do not of itself, and 
as dear as the sun, and that neither the ; in fair and honest construction, amount to the 
legishaure nor the public pfo^cutor can be ' crime laid in the major proposition, there i$ no 
barged with any design of introducing coo- ! case before you. For I have no intention (I 
atractive treason, by* demanding the ioflietion I disclaim it, and no one can with truth impute 
of a capital puidshment on such a crime. | it) to press a severe or harsh construction of 

Taking that view of theobjects and purposes ! the oath. The terms of this oath have been 
of the statnte, and considering it with refer- ; often read to you, and, however disagreeable 
to the prindples and system of the law i it mav be to repeat that which you have so often 

heard, the importance of the case must be m]^ 
apology for again readiug its words and sub« 
(offdships wiU be f^eased^to attend to the | jecting it to a critical examination. . 

I may here state, that in construing the oath 
there can be little room for difference of opinion 
as to theprittcipleon which you ought to proceed. 
I am willing to admit, that the panel .at the bar 
is not to be ensnared hj any subtle, recondite^ 
and remote iaterpretation of the oath, by any 
interpretation different from that which an or- 
dinary man would put upon it, on reading it 
from beginning to end. But I maintain with 
equal confidence, that the panel cannot escape 
from the law, and the public safety is not to 
be eikdangered, by a construotioii in his favour, 
which is recondite or subtle«-4y an interpr^ 
tation of the oath, which it plainly could not bear 
in his own mind, and which plainly he knew it 
did not bear in the minds of those to whom it 
was administered. Between these two ex« 
tremes, it is your peculiar province to strike 
out the middle .course, and to adopt that just 
and rational interpretation which will not only 
command tihe acquiescence, but the approb%* 
tion of the public prosecutor. * 

What does the oath sayP ^^In the awful 
presence of God, I, A B, do voluntarily swear 
that I will persevere in my endeavouring to 
form a brotheriiood of affection amongst 
Britons of every description, who are consi- 
dered worthy oi confidence." I concur with 
my learned friend in sayino^ that this part of 
the oath, if taken by itsdl^ is perfectly inno- 
cent The oath goes on, ** And that I wi|l 
penevere in my endeavours > to obtain for all 
Ifhe people in Oreat Britain and Irdand, not 
Holdiaff, as I do, with a confidence not in- disquulified by crimes or insani^, the electiva 
ferior.to vuki whidi has bean expressed on the franchise, at the age of twenty-one, with free 
dde^ the inteimuliQnof the statute, as and equal lenresantalioDi and annuel parlis* 

VOL. xxzm. N 



1791 57 GEORGE IIL 



^Tud tf WiUum E^r 



C180 



nents ; and that I will«8upport the tame to tlie 
utmost of my power, either hj moral or 
physical strength, as the case may require: 
And I do further swear, that neithtr hopes, 
fears, rewards, or punishments, shall induce 
ine to inform on, or give evidence against, anj 
member or members, collectirely or indivi- 
dnally, for any act or expression done or made, 
in or out, in this or 'similar societies, under the 
punishment of death, to be inflicted on me by 
any member or members Df such societies. So 
help me God, and keep me stediast.*^ Two 
questions have been raised on this part of the 
oath. The counsel for the panel has main- 
tained two propositions. First, Thai the words 
** tttpport the mant^^ mean, that the oath-taker 
was to support annual parliaments and univer- 
sal suffrage, after these mighty improvements 
were estiu>lished by I'egular and constitutional 
means. And, tecmdy That even if the words 
nf^pori Mc same mean, to support the eodea- 
voars to obtain these objects, yet the p^/ncal 
strength to be used was capable of being used 
in a manner not illegal. 

On the first point, your lordships hava to 
consider what is here uuderstood by the word 
seme. What is the antecedent to this pro- 
noun ? I submit, there are only two ways of 
giving a sound construction of this word. It 
must- eitfier apply to the whole of the previous 
branch of the sentence, or to a part ot it. If 
the first is adopted, and if it be held to embrace 
the whole of the previous part of the sentence, 
and if the antecedent be considered as thus 
extensive, then the construction put upon it 
by the other side vnll be destroyed; for if the 
word *' same" embraces all tba previous part 
x>f tlie sentence, it includes both the use of 
physical force in obtaitiing annual parliaments 
und universal suffrage, and its employment in 
Maintaining these objects after they are accom- 
plished. This is a mode of construction so 
perfectly fair, that the panels cannot object 
to it. 

' But this is not the construction which a pe- 
rusal of the oath naturally dictates. It is dear 
that by it the obligation to accomplish the 
wished-for changes by physical strengtii was 
contemplated, and that this. was the sole pur- 
pose of the oath. I maintain, that taking t^e 
whole of the oath together, comprehending the 
'obligation to conoeaJment, it is impossible to 
consider it without condudinff, not by a remote 
and distant cotistruction, but Indirect rational 
necessary inference, that the parties had in 
thdr minds a criminal accomplishment of their 
designs, and the moment criminal intention is 
granted tome, it folfows that there can be no 
criminal accomplishment of this design, but 
flueh as would oe treason. The reasonable, 
the ftur constmction, • thai which -obvionsly 
mnst have have been in the mind of the giver 
aikd taker of the oath, is, that the wvrd same 
bad no other application than that wksich I 
^bave stated, viz. to bind to the use of phy- 
sical strength for the attainment of the'object. 
-This is the eorveet| graminatical ooBBtnictum^ 



pointed out, not only by the juxtaposition of 
the vrords, but by the general sense of the whole 
passage and of the vriiole* oath ; and it fs im^ 
possible to put an^ other inteipretation upon 
It, without sacrificing the pubuc safety, and 
public law to a forced and subtle construction. ' 
I do not dweti longer on this point, bo- 
cause truly it lies in a nut-shell, and if by 
merely- stating it, I do not shew that I am in 
the right, I despair of doing so by any length 
6f argument. 

Now, your lordships have to consider^ 
whether, supposing it were established that the 
obligation in the oath is to support endeavours 
to obtain annual parliaments and univecsal 
suffrage* by physical strength, the act which 
was thus meditated, does, li accomplished, 
amount to treason. That such purpose woidd, 
if accomplished, have constituted treason, is 
proved by the concurrent testimony of all law* 
yers ancient and modem. The essence of 
treason consists* in the application of force 
to the accomplishment of an alteration in any 
general law. How did tty learned Mend get 
out of this dilemma? He maintained ml 
physical strength forttie accomplishment of any 
diaiMre in the laws of this kingdom, might by 
possibility be exercised without committing 
treason ; and this he iflustrated by supposing the 
case of the Sneaker of Uie House ox Commons 
being forced ny threats and violence to consent 
to a bill for the abolition of the House of Lords, 
or of anv of the branches of the constitution, 
which bul having passed the House of Lords, 
had its fote dependent on the Speaker's casting 
vote. That whimsical case can scarcely be 
called a case in illustration ; but if it were 
neoessaiy for me to enter into that supposed 
case, I would say without hesitation, that here 
was treason, not merely under the act of '^e 
36th of the king, but under what I may call the 
previous common law of the land. Many de- 
cisions might be referred to, to establish this. 
But I have no occasion to enter upon sudi an 
inapplicable question. 

The other instanoes of the possible exertions 
of physical force in the accomplishment of the 
purposes contemplated by the panel and bis 
associates are utieriy absurd. It is said, that 
physical force may be exerted in the canying 
of messages, in the erection of hustings, in die 
keeping off the crovrds, and in various other 
ways which are all innocent, and whid^ are sJl 
Gondaeive to the attainment of the objects in 
view. I contend, that in these illustrations 
the tounsel for the panel forget or overiook the 
distinction between the terms moral said 
physical, as employed to characterise humlm 
action. When a man delivers an oration, heis 
tmdeiBtflod in Ammon language to exercise his 
moral power or strength. But my learned 
friends must admit, thateome pbyncal force or 
strength is also at the same time everted. To 
make the penl^th which the poliiioal oaHoria 
tovrrite, to carry the bench fromwhieh the 
political orator is to deelaim, to keep off ti»e 
cr^wd vrith which the poUtidal orator- woald 



ISI] 



for Atbkitdderiiig unlawful Oalht, 



A. D. I8I7. 



Il8i» 



Otherwise be incominoJedy are all actions sub- 
serrient to the moral powers which are to be 
exerted. It is impossible to d^ny this without 
GonfoQDdin^ the disdnction between the terms 
moral and physical. Ko moral power can be 
exercised by man without physical exertion^ 
Ifut when the distinction to whidi I have ad- 
verted is reooUectedy the iUnstrationv which 
have been offered are either in themf eUes ab- 
sard, or are against the argument of the panel, 
and most be classed with moral, and not pby* 
sical exertiona. 

The obligation in the oath is, to employ 
moral and phjvical strength, as the case may 
Mquire — tlAt is, such moral strength, as the 
case may require, and such physicil strength, 
as the case may 'require.— It is thus clear, 3iat 
tbe terms of the oath do not bear a limitation 
to that innocent sort of force by the criminal 
example of which the learned counsel illus- 
trated his argument. According to the dear 
terms of tbe oath, such physical strength was 
to be employed as the case might require, for 
the accomplishment of the purposes which 
bare been mentioned. What, I ask, are we 
to understand — what is the le^ inference 
from the construction I have given? It is, 
that physical strength, «s the exigency might 
require^ was to be used for the aocoqtiplish- 
ment of a change in the constitution. 

It is unnecessary to advert to the extreme 
absordity of endeavouring to distinguish be- 
tween tlMS meaning of the words sfrev^M and 
Jane. They are certainly synonymous terms; 
and for the present purpose, at least, no dis- 
tinctioD can be stated between them, either in 
popular or technical use. It is impossible to 
acoompliah the alteration or subversion of 
any part of the constitution by physical force, 
^thonty in legal acceptation, levying war for 
ihat purpose, or compassing the king*s death, 
•r bein^ guilty of some oUier treason. ' The 
application of numerical physical strength is 
nothing else but the levying of war. JBut if 
war be levied within the lungdom for any 
|(aiiecal purpose, — ^for the purpose of subvert- 
ing any of me branches of the constitution, — 
th^ war is understpod to be r levied against 
the king, who, being the executive, is bound 
to protect the other branches of the Legisla* 
tare. This is the import of all the antborities, 
to some of which' I may now. direct the atten*> 
lion of the Court. 

The first authority to which I refer is that 
tif Bladcstone, who states the law in a brief 
and popular form. ^ The third species of treason 
n^ ' It a nan do levy war affunst our lord tbe 
hug in his realm** And this may be done 
bj taking anns^ not only to dethrone the king, 
wA aader pretence to reform religion, or the 
tows, or to remove, evil counsellors, or other 
grievances, whether real er pretended. For, 
tbe law does not, neither 4^. it, permit any 
private man, or set -of men, to interfere 
Miciblyin matteis of such high, importance'; 
especially as it ^as; eitablished a sufficient 
power, loi these purposes, in the bigb court of 



Parliament: neither does the constitution 
justify any private or particular resistance for 
private or particular griefances; though in^ 
cases of national oppr^ion the nation has' 
very justifiably ris^n as one man, to vindicate 
the origins^l contract subsisting between the 
king and his people." * 

Ibe next authoritv to which I refer is that of 
£w<er, a book which is daily cited by English 
Judges, as an undoubted authority. I quote 
from page 211. — "Insurrections in order to 
throw down all enclosures, to alter the esta« 
blished law, or change religion, to enhance the 
price of all labour, or to open all prisons — all 
risings, in order to effect these innovations, of 
a public and, general concern, by an armed 
force are, in construction of law, high treason, 
within the clause of levying war ; for though 
they are not levelled at the person of the king, 
they are against hisjt>yal majesty; and be- 
sides, th^ have a direct tendency to dissolve 
all the bonds of society, and to destroy all 
property, and all government too, by numbers 
and an armed force. Insurrections likewise 
for redressing national grievances, or for the 
expulsipn of foreigners in general, or indeed 
of any single nation livins here under the 
protection of the king, or tor the reformation 
of real or imaginary evils of a public nature, 
and in which the insurgents have no special 
interest— risings to effect these ends by force 
and numbers are, by construction, of law, 
within the clause of levying war; for they 
are levelled at the kings crown, and royal 
dignity." 

the only other authority to which I shall^ 
refer, is that of a Judge, than whom none was 
ever more highly or more deservedly honoured 
during a long and splendid career. I. quote 
from the summing-up of lord Mansfield on 
lord George Gordon's trial. — *' There are two 
kinds of levying war : — One against the per^^ 
son of tbe king; to imprison, to dethrone, or 
to kill him ; or to knake him change measures 
or remove counsellors : — ^llie other, which It 
said to be levied against the majesty pf the 
king, or, in other words, against him in his 
regal capacity ; as when a multitude rise and 
assemble to attain by force and violence any 
object of a general public nature; that is 
levying war against, the majesty of the king ; 
and most reasonably so held, because it tend^ 
to dissolve all the bonds of society, to destroy 
property, and to overturn government; and by. 
force of arms to restrain the king from reigi> 
ing according to law. 

^Insurrections, by force and violence, to 
raise the 'price of wages, to open all prisons, 
to destroy meeting-bouses, nay, to destroy all 
brothels, to resist the execution of militia laws, 
to throw down all inclosures, to alter the esta- 
blished law, or change religion, to redress 
grievances real or preiended, have all been 
held levying war. Many otiier instances 
might be put. Lord Chief Justice lloli, iu 

* 4Comm. ai. 



gir Jobn Friend's cas«, says, ^^if pevsoin do 
assemble themselves, and act witn force in 
opposition to some law which they think in* 
coDTenient, and ho^ thereby to get it re- 
pealed, this is a levying war, and treason." In 
the present case, it don't rest npon an impli- 
eation that they hoped by opposition to a uiw 
to get it repealed, but the prosecotion proceeds 
npon the direct ground, tnat the object waiy 
by force and violence, to compel the Legis- 
lature to repeal a law; imif tAere/bre, witAoitf 
fifty doubif lUU you the jomi opinion ofvsaUj 
that J if thii mtdmide auembled with intent^ by 
ccts y force and violence^ to compel <Ae L^U' 
lature to rneal a Imo, it ii high tmmm. 

^Tboogn the form of an indictment for 
this species of treason mentions drums, trum- 
pets, arms, swords, fifos, and guns^ye^ ntme of 
ikt$e dramntoRca are etMentiaL The quettion 
choeysiMy Whether the intent tt hy farce and vio^ 
knee to obtain an oljeet of a general andmtbtic 
nature by any imtrwnents, or bydmt of their 
numbertf Whoever incites, advises, encon- 
nget, or is any way aiding to sudi a multitude 
so assembled with such intent, though he does 
not personally appear an>oog them, or vrith 
his own hands commit any violence whatsoever, 
yet he is equally a principal with those who 
act, and guilty of nigh treason/'* .Many 
other authorities to the same effect might be 
accumulated. I need not quote Hume, who 
«ves a very luminous abstract of all the 
English antboritieron the subject, and gives a 
summary which, in perspicuity and preci- 
sion, is not surpassed by the boasted oracles 
df English law. 

I say, therefore, on these authorities, it is 
utterly impossible to imagine that any change 
*in the constitution can be accomplished by 
physical strength, without necessarily implying 
— not constructively, but necessarily implying 
— 4hat it is done by force and violence. Levy- 
ing war is nothing more than the application 
of an act which is treason. The for&v or mode 
of this act may probably be that of levying 
war, to overcome or prevent resistance. It 
does not consist in having drums, or uniformity 
of dress, or the other usual appendages of 
warlike pomp. It does not consist in any 
particular kind of offensive arms, but in the 
application of a powerNk and numerous force; 
and it is impossible tl^t strength for the ac- 
complishment of any change in die consti- 
tution can be applied in any way, so as not to 
include the crime of treason, either of levying 
war, or of compassing the king's death, or m 
treason, under the Stat. 36 G. III. That 
which is accomplished by force can only be 
dotie iub rpeae oelUf in so fer at those terms 
have any intelligible meaning, and the same 
quality must characterise that which is in« 
tendea mt resolved to be donei I submit, 
therefore, that the construction given by die 
learned gentleman to the oath is erroneous,- 
and that the only sound, the only legal, and 



Triai qflViUiam Edgttr 



tlM 



•«MM«n 



• 2t How. St. Tr. 644. 



the only obvious eoi)stniction of it, i» that 
which I have stated to your lordships. 

It iHs contended forther, however, tha^ 
supposing a treasonable purpose to have ex- 
isted, it is still necessary that it should be 
proved by and appear in the oath, and in the 
oath alone, in oruer to have the Tase braiught 
under the statute. If I rightly understood 
tiiis plea, two things were maintained, wMch 
I own appeared to me to be inconsistent: It 
was first maintained, that then is a want of 
specification in the indictment as to the mode 
in which the treason contemplated.by the oath 
was to be effected ; next, it was maintained, 
that in this indictment, charging the panda 
with administering unlawfM oaths, we are not 
entitled to go into any proof of acts of treason 
said to have been committed \q them, for that 
would be to make the proof of one crime the 

Fr9of of the commi^on' of another. These 
consider to be inconsistent objections. 

Whether the treasonable purpose should ap- 
pear in the oath itself, to bring the case witiun 
the statute, it is unnecessary to ame, because 
in the present case we do not desire to go 
beyond the contents of the Oath. But in pas- 
sing, I roust deny that this plea for the panel is 
sound, or at all warranted by the terms of the 
statute. 

With respect to the other objections, I must 
observe that from the nature of the crime 
which the statute hasi defined, you neither can 
require, nor can yon eiqiect, in charging it, 
a specification of overt acts of treason. Ac-. 
Corain^ to the previous argument of the panrt, 
the prosecutor is not entitled to prove any acts 
of treason, if such had been actually com- 
mitted, and herein lies the monstrous incon* 
sistency of his present argument. In my view 
of the case, tM specification which the mad 
thus . alternately opposes and demandt, is 
morally impossible. 

The charge hero is not for the accomplish- 
ment and completion of the crime of treason ; 
— the Charge is for the conception, the nia- 
gination of treason, sanctioned by an- oath, 
and so far by an overt act consisting in the 
administration of an oath. When a crime bas 
not been actually committed it is impossible 
Co state the circumstances of mode, time, aii^ 
detail of execution. When a crime has been 
. committed, it is of course an essential mode of 
that criminal act, that it was accompanied by 
time, place, and circumstances; and when a 

Eanel is brought to the Bar on a diarge of 
aving committed a ciim^ the p ros e c uto r can 
have no knowledge regarding it without 
knovring some of the prominent dreuastances 
of its execution. But you must all be aware^ 
that this rale cannot ap»ply fo what merely 
exists in intention. Of intention hete, ytmr 
lordships have evidence by the oath, and th« 
oafli is such as the statute has made it a 
crime, dther to adminfoter or to take. 

The crime charged is the adaadniBtetisif an 
oath of a certain kind,' and the mode of tbit 
aot is admitted to be suflkiently ^kldled. H 



1853 



Jar AdrnmiiUring UmIm^ Oathi. 



A. D. 1817. 



UM 



IB powble that^wben tlie otth was adnius- 
tefedy not cme circmnstiDee was finally ra- 
solved upon as to the detail of the ezecation 
of tike treaaon ^-it is cpute pooible that no 
ooe cncomaunoe nnqr hare b^en fixed on as 
to the mode in whidi it was to have been 
carried into elfeet ; — and no lesoliitions adopt- 
ed as a> the ooune of p r oc e eding to be folkm- 
ed fiw the nocompHaoment of the atrocions 
imiposea of the parties. Diflerent plans ma^ 
tare eiiated in the minds of difiierent consp- 
lators; — ^therenay have been nnmeioasdttH 
pvtea on the anbject :— end therefore^ from the 
very naftnre of the statntoiy crim^ it is hn* 
poanble that any snch detail as the opposite 
yeity raqniin could be given ; and it is enon^ 
lo any thai the statute has not required it. 
The nature of the treaaon which the oath bound 
the parties to commit is as much specified as 
it is poaaible fi>r the public praaecutor, or for 
any human being, to spedfv* He has said, 
that the treaaon contemplated waa iiM vdiich 
cenaismd in compelling an alteration in the 
aataifaliabed laws by force and violence. That 
this would be treason^ who can doubt t 
Wbethepy in the actual aeoomplislunent of it, 
the erimhals would have levied war against 
the king, in the sense in which the law uses 
dwaetennsy or whether they would have com* 
paased or imagined the death of ttie king, or 
whether both these legal Crimea would have 
been perpetrated in the actual conaammatvM 
of dieirpurpeae, whocanpfetend tosay? To 
demand, that the public diould divine and 
specify the mode in which ^ treason was 
•etnaliy'to be perpelmted, isaDsuid andim* 
poasibte, because Uie modes ate various. To 
deBBsad tfamt he should^spedfy all the modes 
m whicii the intended treason ought to be per- 
petrated, is plainly unneceasary and uaeMtt* 
It ia aofficient fivr him to satisfy your lortehipi^ 
'that the object contemplated if the oadi could 
ftot be aoeompUAed but by means of treason ; 
and on tins I have already statod m v argument, 
na Ihe w<»d8 of the highest anthontieB of the 
Aaw. 

Bat it was also rather i ncon sis tently urged, 
tfiat if we had stated treason to have been 
committed witlTall itactreamataiiceSyWeslMmld 
not have been entitled to ofier any proof of 
this averment, or to give any detttl of the 
teta haai, as the panel is not on hia trial for 
high treason; and one otrjeetion to |he indict- 
aaant la to thenairative of details widi vriiioh 
the Btatotory ofieace is iatrodueed. On lo<dc- 
iag into the statute, I think it is hardly neeea* 
aaiy togointothuquestiony beeanse itianot 
o e eio i mre that the commission of o¥cit acts <£ 
um m m Aotdd be aJleged. I submit tOto^thA 
avfaat my leamed iriendy who Hamediately ^liro- 
«eded me in behalf of the public praeecutor, 
acnted on this put of the sntgect, was agrees 
•hie to the law of Scotland, and suffieieiitly 
obviates a& that was urged in .the way of ob- 
jectien to ttfirpart of th» ease. 

IncomlneioaL it ins etrondy and powei^ 
.ftiB9^«i«fi, o^a hWbhi|i In % «ub oC ibt 



paiAL tftet, though acquitud On diis oa a a ri on. 
Be might be afterwards tried for treason. If 
he were to be acquitted of this chaige, and 
afterwards brouffht to trial ibr treason, I sus- 
pect we ehould near ficom his couasel an eflbc- 
taal atgument a^nst sodi second tiiaL I 
content myself with aaying, that nor view and 
interpretatioa of ttie statute it totaUy and abso- 
lutely different ftom that of my leeroed friend, 
Mr. Cranstonn, and that m eonceivei ftom 
the temn of it, it is impossible audi a second 
trial could be atteaipted. It is said, in the 
last chKise^ '« Ibat any person who shall be 
tried, and acquitted or convicted of any offeneo 
against this act, sleff not k fittfe lo fte MKiid; 
proeeoul0^ or tritd flgwii fbt ths toawcwisMCji 
or factf as high treaaon, or misprision of hlgii 
treason; and mat nothing in this act eootaiMd 
shall be c ou sfa u ed or extend to prohibit any 
perMm guilty of any offenee against this ne^ 
and who ahidl not be tried for the same aa aa 
offence against this act^ftom being tried for 
the same as high treason, or miipriiian of 
higfatreaaoui in such manner as if tins aet had 
not been made.^ 

This chutte wae intended to gnrd aganat 
two inconveniences. '1st, It waa intended tf 
protect the eubject ftom being tried again aa 
for tijaaon upon the facts on whieh die ttailtt- 
toiy crime shall have been already prosecuted^ 
In odier words, it would be impoeaude to give 
in evidence, in any subsequent trial of this pti* 
soner, any of the fi«ts whidi have been Ad- 
mitted to proof in the present case, ted. It 
was intended to guard apinst the posaih&ty 
of the enactments of thn itatute beinff ce»* 
strued to afibct the prindples of the nw of 
treaaon previously establislied. If, theirefoN!^ 
the pubuc prosecutor were to attempt to bring 
the prisoner to trial for treason ilter an oo- 
qnittarin this case> he could not bring in evi» 
deuce iiiiy one of die fhets tfhieh were mere 
or len connected with, the present ehaife* 
11iisfa.the plain and aeoeesary oCnstrnction of 
the clause in the statute^ and entirely removea 
the olijeelion. • 

• I have to cdl your attention to an aothori^T 
upon Ae question that has been started io» 
lating to 'the speeifloation of the erime. It haa 
been maintained, that we are bound to tpecify 
the general nature of dm conapiiacjr heme wo 
can proceed to phove the <iriaMnil mtentign of 
the perties. On this tnWect I may nfor to 
the gesetal tsims inwUdi ah BAgtiah aldtct- 
ment haa been laid and fcnod relevant.* Sodb 
A dediion, idthough it eaimot afibot the law of 
Scotland as a oenclutive uutbority, vat ia;r#- 
spaotdbteia its way, and worthy eteonaiffcv* 
utiom I Mbmit that in describing the iUefal 
iodfltieB, Ao temife uM in this English in* 
dietment'tre more geavial thato Aoia wUdi 
dm praiechtor has employed on lids ocaasioii, 
and to which an otgectxm has been taken. On 
dmwhol^ I ma&maitt tiuit dm indietaMnt be- 



jm 



^ JSL V. Mcon^aod :o<faer% « JBL 41^ 
,1 Aim. tm ; 3 CUl» Crim, JLetcylO). 



n; 



1871 



ff! GEORGE III. 



Trial of miUam Edgar 



[188 



fore yoQy in the £)rm in which it is liid/ (Might 
to be ftmnd rdevant. 

Mr. GfarA.^— Tliis indictment 'proceeds upon 
nn act of parliament passed in the 52nd year 
of his majesty's reign, against' administering 
nclawfiil oaths ; and accordingly certain clauses 
of the act are set forth in themuor proposition, 
ts containing the description of the crime to be 
diarged. This being the accusation, I need 
not remark that it would haVe been easy for 
the ]^nbUc prosecutor, if he had a case faitting 
within the act of parliament, to confine him- 
self to it in the minor proposition of his indict- 
ment, by 'Stating in plain terms, that true jt 
was and of verity, tiiat the panel had admi- 
nistered such an unlawful oatn as that which 
was prohibited by the statute— reciting the 
terms of the oath— averring that an oath in 
theie terms ftll under the statute as being a 
tnosonable oath — stating how and in what 
TCspectit was treasonable, and to which of 
^ different species of treason it iqpplied — 
and specifying- the time, place, and occasion 
of connnitting the crime. The relevancy of 
such an indictment might perhaps have been 
sustained. But the pifblic prosecutor has not 
confined himself to the proper charge appear* 
ing on tiie major proposition of his own inclict- 
ment, but has attempted most illegally to in- 
tiodnce' matters totuly unconnected with it, 
for the purpose of embarrassing the prisoner 
with accusations of a kind totally dmerent, 
and which cannot be the subject of inquiry 
with reference to this charge. 

In aid of his argoment the public prosecutor 
has founded on an Englidi case, in which one 
was convicted on evidence of circumstances to 

rre Ids intention in administering an unlaw« 
oath. I mention this now, because it is 
proper to Udce an eariy opportunity of distin- 
gniMiing that case from tne present. I know 
veiT little of the English case referred to; but 
on hearing it read, I observed quite enough 
to perceive that it was a case totally diiSerent 
fipom the present— proceeding oa another act 
«r Parliament, different in its terms from the act 
which is now fbonded on by the public prose- 
cutor. Under the former act it is competent 
to prove the intention of the unlawfid oath by 
dreumstances extraneous to the oath itself, 
though that is not oompetent in the present 
case, in which the Court and jury must cour 
sider the terms of the oath and nothing else. 

It has to-day been noticed more thvi once, 
^t besides the act of pariiament libelled on, 
there is 'another ael^elating to unlawful oaths. 
But when yon attend to the language of that 
act, you will see the difference between the 
terms ^re used, and those which are em- 
ployed in this act of the 52nd of die kin^, and 
yovL will see the reason of that difference, and 
now it ought to afitect indictments founded on 
these acts. 

■ The indictment before the Court is founded 
en the act passed in tiie 52nd year of his ma* 
jesty, directed against those ^ who shall, in 
imy manner or form whatsoever^ administer, 



or eanse to be administered, or be aiding or 
assisting at the administering^ of any oath or 
engagement, pwrportmg^ or nUendmg to bind 
the person takioff the same to commit any 
treasoq." &c. These persons are liable to the 
punishment of death, and every person iriio 
shall take the oath is punishable by transporta- 
tion. By the 4th section it is enacted, that 
persons aiding and assisting at the administer- 
ing of any such oath, shall l^ deemed principal 
omnders, and liable to the same punishment 
of death. By section 5 it is not necessary to 
set forth the wqrds of the oath, and it ** shall 
be sufficient to set forth the purport of sodi 
oath, or some material part thereof.'* By 
section 6. *^ any engagement or obligation 
whatsoever in the nature of an oath, purport' 
ing or miendmg to bind the persoa taking the 
same, to commit any treason, &c. shall be 
deemed an oath, within the intent and meaning 
ofdiisact.'' 

Now, by comparing this act with the former, 
it appears, that as the penalties are more severe, 
so me description of the crime is more limited 
than in the former act It is necessary that 
the oath or engagement shall j?Hrpor^ or intend 
to bind the person taking the same to commit 
the treason, or other crimes punishable with 
deadi, wbidi plainly signifies, that the purport 
or intendment of the oath only, or, the true 
meaning of its words, shall be considered in 
any prosecution against those who administer 
it. The purport of an oath has no reference 
to the in^tion, criminal or otherwise, of the 
party who administen it. The words of the 
oath may be innocent, and vet the intention 
may be very criminal. On the other hand, the 
words may oe veiy mischievous, and vet the in* 
tention may be otherwise. But the legislature 
imposes the penalty according to the purport of 
the oath ; the intendment is the same with the 
purport in speaking of the oath ; and either ot 
these terms may be considered as synonymous 
with the true meaning of the oath separately 
considered, and without regard to the intention 
of the party who administers or takes it. 

In one view, this statute is uncommonly 
severe, inflicting, as it does, a capital punish*- 
ment for administering an oath which may be 
followed by no crime whatever. And even ia 
taking tibe'oath according to its. purport or in- 
tendment, there is much severity; because the 
notion or opinion of the party who administers 
or takes it, as to its meaning -and object, may 
be very different from the opinion of a court 
of law as to its true construction, and so the real 
intent ef the partv may be muchlesscriminalthan 
the ' intent whioi is imputed to the oath itself, 
by the judgment of the CourL Bu^ on the 
other hand, while the act is foil of severity on 
tAese points, it is lenient, in so for as it restricts 
the charge to the purport, intendment, . or true 
meaiiingof the oath, and does not admit of aproof 
(Which might be veiy loose and unsatisfactory, 
and very hard upon the prisoner to be tried)of an 
intention on his part, that went beyond the true 
meaning of the oeta which he administered. ' 



fir ^Mmdermg unla^ Oaths. 



18P] 

For tbttftfit docf not allow it to be proved, 
tlttt ihoogfa the words of the oath were appa- 
rently ioDooent, yet that under colour of an 
-inoocent engagement the moat criminal inten- 
tions were concealed or C07d!red. In what way 
soever te pablic prosecutor may make a 
diaige of that kind (which supposes, no doubt 
(hat a neat crime had been committed), it is 
plain that he codd not make such a charge 
under this acL And the statute tempeis its 
own severity with lenity in an6Aer important 
circumstanoe. Those who aid and assist in 
administering tbe oath, are liable to the punish- 
ment of doth ; but those who were present at, 
and consentinff to the administering the 
oath, are not liable as for administering it, and 
it seems to have been the intention of the legis- 
lature that they should not be so liable. 

This act may be contrasted with that which^ 
WIS passed in the 37th year of the kin^, in 
which, though the punishment to be inflicted 
upon offenders was less severe (transportation 
for seven years), there is a much ^^reater an- 
xiety to prevent them from sscamng; and, 
•coordinglv, the cases in which mat puniab- 
ment may be inflicted are much more numerous 
and comprdiensive. It is enacted,* ^^That 
any person or persons who shall, in anymanner 
or form whatsoever, administer, or cause to be 
administered; or beaidiuff or assisting at, or 
praad and conaadmg to the administering or 
taking of any oath or engagement, purporting 
or mUnded to bind the person taking the same 
to engaee in any mutinous or seditious purpose ; 
or to disturb the public peace ; or to be of any 
association, society, or confederacy formed for 
any sudi purpose; or to obey the orders 
OfT commands of any committee or body of 
men, not lawfully constituted, or of any leader 
or commander, or other person not having 
authority b^ law for that purpose ; or not to 
iafomi or give evidence against any associate, 
confederate, or other nerson; or not to reveal 
or discover any unlawful combination or con- 
Ibderacy; or not to reveal or discover any 
illegal act done or to be done; or not to reveu 
or discover any illegal oath or engagement 
which may have been adnkinistered or tendered 
to or taken by such person or persons, or to 
or by any other perKm or persons, or the 
import of aiqr snob .oath or engagement; 
ahalL on conviction thereof,*' &c. And by the 
third kection it is enacted, ** That persons 
aiding and assisting at, or prtitnt at and am- 
aeafni^ to the admmbtering or taking" of 
^he oath, &c. shall be deemed principal 
otfendei& 

Here is a very numerous collection of crimes; 

and as to the oath itself, not only are the 

persons liable to the' statutory punishment, 

' who are present at and consenting to the ad- 

ninistering or taking of it, but every oath is 

eomprehended, where it is of the nature sped- 

•tfed, either in its purport or meaning, or where 

•It is intended, by the par^ admioistering 

,^ 37Geo. 3cd, c. 133, s. 1. 



A, D. 1817. 



1100 



or' taking it as..aq^ path of thai deseriptaon, 
whatever mn be .its particular words. For 
the terms of the act are ^- purporting or w- 
tendtd.Xo bind f fmrporOMg refers to thf mean- 
ing of the oath; tntaided refers to the intention 
of the party. An oath purporting to bind, is 
mtendea hj the party for that, purpqse. The 
purport of the oath, and. the intention of the 
par^, may be diflertot; but the statute makes 
him liable for both; not merely the meaning 
of the words emplq^, but- his own iptention 
(pQosibly a secret intention) in using thev, 
which may be ynuch more miscbievons or 
wicked than the plain or true meaning of the 
words. Accordingly, in the Engliui case, 
which was tried upon the 37th of tte king, the 
meaning, object, and intention of the party, 
distinct from the meaning. of the words, was 
allowed to be proved. There was dearly roosa 
in that act for the construction put upon it bj^ 
the learned judge* who presided at the triaL 
But whatever 1^ the constructioB of that ad, 
there is not the least room for such a oqnstnM>> 
tion in the present case, where the words, as 
well as the objecte of this statute, . are so 
very diflerent The words ^ potporting or in- 
tending to bind,** plainly require en osM whicb 
purports or intends to bind, and refer e>- 
dusively to the intendin|( or intent of. the oath, 
without regard to the intending or intent of 
the party, further than his intent to administer 
or take Uiat oath. And this was apparently 
admitted bv Mr. Solidtor General, when he 
observed, that the meaning, purport, and in- 
tention of the oath, are to be referred to in 



V 

1 



this argument, and not any. c^ospiracjf or 
traneous drcumstances. Inos there is a 
son sufficiently evident for ezchiding a proof 
of circumstances whoe the indictment is laid 
unon the 52nd of the king, which might be 
admitted where the indictment is laid on- the 
37th of the king. And if it be oompetent 
under the 37th to prove the intent of the 
party by dicumstanoes whidi do not appear 
from the oath, it was intended by Uie 52|mI 
. that no evidence beyond the terms of the oath 
itself should be allowed for proving the tnteni 
of the party. 

If the observations I have now made are 
well founded, the public prosecutor is. entirely 
wrong in attempting to introduce in the 
minor proposition of the indictment a long 
detail of circumstances, with no other object 
than to establish the supposed wioked intent 
of the prisoner, by evidence thai is extraneous 
to the administering of the nnlawlid oath. The 
prosecutor ought to have confined himsdf to 
that charge ; and I must again observe, thai 
he had it in his power to frame an indictment 
without obiection, by the proper redtals of the 
statute and of the oath, with proper aUegntioos 
that the oath was prohiUted oy the act of naih- 
liament. But instead of adopting thif plain 
method of proceeding, he. has d^K!q|ea the 
pand yriih an indictment that is evposed to 
mnumeiable^obieotiQns. .; , . i . 

* Lord Alvanley ; C JB. 4*0, n.^ 



IMI 



57 GBOROB Ifl. 



Tritd^mUkmOfg^ 



[IW 



noobjedtioii 



would be fiiiBcieiit to' ofest the iadieCtteiity if 
BO other could be * stated. Bat I sheU rtmark 
upoD some of the other olgeotioiis. A good 
deal was said upon the competency of a gMie- 
-nl charge of high treason made in an indict- 
mept, without pointing out any particular 
apecies of treason. There can be nodo«bt 
whatever^ that where tire party is to be tried 
lor the crime of high treaiony a general charge 
of high treason made against him in tiie in- 
dictment would be good for nothing, and 
would at once be dismissed. For there are so 
many different kindii of high treason, eadi of 
them distinguishable from all the rest, that 
it would be Just as welT to charge a man with 
> iMtring committed a crime, without saying what 
crime, as to charge him with haring committed 
treason, without saying what treason. But it 
seems Jto have been thought by the prosecutor 
that in this indictment it is sufficient to refer 
to high tteason generally without distinguish* 
ing between one treason and another, b^use 
the pandl te not to be tried for committing high 
treason, but for baring administered an oaUi, 
pfurporting or intending to, bind the person 



IhaifejostMfoifedtolcablc. Itseemathebto beinlispiEtable, thai 



the species of treason, should hare oeen alleged 
or assigned in this indictment, and that the 
totel want of the specification in it is as olijeo- 
tionaUe as it would be in a trial for high 
treason. The objection is founded on the gieat 
and indispensable rale in criminal justice,^thal 
the panel ought to have notice of the pvecise 
accusation against him ; and the want of such 
notice in this indictment makes the case pre- 
cisely the same as if the prosecutor had 
attempted to proceed without an indictment 
at all. 

Another objection to the indictment was 
strongly and doquentlv urged by Mr. Crans- 
toutt, that you cannot, n>r the proof of a crime 
that is charged^ prore any other crime that is 
not charged. This was stated, on the authori^ 
of Mr. Burnet, and of long practice. But one 
or two cases were cited against us by the 
counsel for the prosecution. I do not admit 
that these cases were correctly stated ; but, ai 
all erents, they do not establish that the pro. 
secutor is entided to prove the extraneous cir^ 
cumstances alleged in the present case. One 
of the cases related to the uttering of foiged 



taking the same to commit high treason. In a notes within Scotland, and it was said, that id 
ohaige of this kind, it has been thought unne- order to prove the charge of uttering in Scot^ 
eessary to spedfy the treason which the oadi . land, it was competent to prove the forgeiy of 
purported or intended to bind the person the notes, although that crime was committed 
taking the same to comnnt But it seems to in England. That was a case of crimm cmh 
be obrious, that there is precisely the same fimwm, in which the criminal act was begun in 
reason to specify the treason in this case as in ' one place^ ooniinmd and completed in another, 
a trial for high treason itself. If it be unneces- ; If I recollect right, a case occurred some years 



•salT to spedfy the treason in this case, would 
it be snfflcient to aUeffe, that the oath pur- 
ported or Intended to bind the person talcing 
nie same to commit a crime^ without spedfy- 



ago, in which evidence of one crime to prove 
another was allowed, and the panel was con- 
victed on a proof of that descriptioo. But that 
oonriction was not approved of in another 



wg what crime, or giving any notice whatever , quarter, and when the circumstances attending 
to the pahel of the nature of that offenee whleh it were known, the man got a pardon, in re»- 
Ihe oath purported or intended to bind the pect of the manner in which his trial had been 
person taking the same to commit! It is i^ain, conducted. One of your lordships will pro- 
-that in such a case the pinel would have no bably support me in this account of the case to 
iiotie# at all of the crime for which he was to , which I now allude. I do not recdlect the name 
1m kied. An oalh, binding the penon taking of the party. 

^^ ii -- i!!r jJT*^ J^!wl5" iL-^r« 1.U «des with what Mr. Clerk has suted ; but 1 

s^'ss^sr/rrXir^ir^i do.otp.rti<^i„.yr«»u..ith.ci«««.t«K«. 

defence emnpletely conclusive against the ai- Mr. Clerk, — There are no dkta in the work 
leaation, that the oath led to the commission of Mr. Hume, nor in that of Sir Greorgo 
6r one crime, would be no defence at all, if , M'Kenrie, inferring that a crime m^j be 
the prosecutor sliould not insist on that, but on > proved by another crime which is not libdled ; 
a diferent sllegafion, namely, that the oath led and the authority of Mr Burnet, who was a 
to the commission of another crime. The very attentive observer of the proceedings in 
panel might be prepared to defend 'himself criminal cases, is directly against the doctrine, 
as to the application of the oath to one-half of . He lays it down expressly, that one crime 



the erimes & the Statute-book, aiid yet, baring 
no distiOct Notice of the prosecutor's views, 
ndght be in iio state o# preparation to defeord 
himself as to the a|[yphcation of the oath to 
adiother erim'^ of which he had no notice, and 
of mtika he had never thought. The same con- 
dd^tioii shei^ that among the different 
•pedee iH lrektf6n,that jparticiilaT spedes should 
be poiBtel oat in the mdietment, to which the 
pKose^utor is- to imist that the oeth was appti^ 



cannot "be proved by another. Thus the autho* 
•ri^r as well as Um justice of the case, is on the 
sioe of the accused. 

But there is another objection to a moof of 
the oonspitacy here mentioned. The allegation 
is in snbatance a charge of high treason ; and 
would your lordships allow sudi a charge to be 
proveo, under this indictment, In direct con* 
tradiction to the Act of Pariiament upon whidi 
you try crimes of treason? Without the inter- 



1091 



J«T Admmslerittg unlaHofid Oatht. 



A. D. 1S17. 



[104 



ventioa of a mud juiy, treason' cannot be 
tried. But if it be ntteriy incompetent to 
prove an allegation, it muist be equally incom- 
petent to maJce the allegation. No party is 
entitled to allege what it is not competent for 
him to prove. And, if the public prosecutor 
cannot be allowed to prove the crime of 
treaaoUf it is impossible for him to proceed on 
this indictment. 

To another objection, no sufficient answer 
has been made, that if the proof of treason is 
entered on, the trial is a pnblic precognition; 
and if the result in this present trial does not 
satisfy the prosecutor, tne panel may be tried 
agiun upon the same &cts. What was said in 
answer to this? From the very terms of the 
act of parliament the panel cannot be tried 
again for the same offence. What is the same 
•TODce T The prisoner is now to be tried for 
administering the oath, and not for high trea- 
son. The two crimes are altogether different. 
The prisoner, if he is acquitted, cannot be tried 
for hi|;h treason, on account of his having 
administered a treasonable oath; but there is 
nothing in the statute against his being tried 
for a separate treason, extraneous to the charge 
of having administered the oath. But, accord- 
ing to the idea of the public prosecutor, the 
oath may be connected with overt acts of 
treason, which might be distinctly an# sepa- 
rately charged; and if it were permitted to 
prove thete overt acts incidentally in this trial,[the 
prisoner, might, on such a precognition, be 
afterwards tried for treason. 

Another objection is, that the requisite speci- 
fication ci die aUegedconspiracy has been with- 
hdd by the prosecutor, the prisoner not having 
Veen fovonned. with the names of any of the 
persons alluded to as engaged in the conspiracy; 
and this objection is of itMlf fatal to the indict- 
ment. It IS stated in the indictment, that the 
prisoner wickedly, &c.conspired,&c. with other 
evil-disposed persons, to break and disturb-the 
pablic peace, &c. But no one of the persons 
engaged in the conspiracy is mentioned. Why ? 
We luive not even been told that the public prose- 
eatardoei noi kmow the names of these supposed 
persons ; but if he was ignorant of their names, 
■e should have said so ; for in an indictment, 
the public prosecutor should give a full detail of 
what he knows to the panel, for the preparation 
ofhis defence. When a fact that should bostated, 
if known to the prosecutor, is unknown to him. 
He sboald . at least state that such fact is un- 
known to him. He should do evenr thing to 
apprise the accused of the nature of the proof 
vdijch he has to meet. Where that is not fair- 
ly done, the prisoner is entitled to object that 
be has not received the notice on the subject to 
vrfaidi he is entitled by law. If a panel be 
^taiged with a wicked conspiracy, he should be 
udbrmed of the other persons with whom 
he is supposed to have oeen engaged^ if the 
praeecntor knows who they are ; and he ispre- 
mmeti to know them, if he ^pe9 not state 
that they are mdinown to him. How hard 
woold it be if the law were otherwise ! • A con- 

VOL. XXXIII. 



spiracy charged may be one of fifty supposed 
conspiracies. If the conspiracy is not identi- 
fied by the names of the persons engaged in 
it, how can the prisoner know what the prose- 
cutor really means to charge? 

The other objections to this part of the indict- 
ment, though they may be less material, are 
still of ver^ great importance, and their validity 
is recognized hr Mr. Hume, who employs 
many pages of his valuable work upon ques- 
tions of this description. 

The gentlemen opposite admit that fair and 
reasoniJ»le notice ox facts must be given, and 
that Mr. Hume says so. He does indeed say 
so. But, although they acknowledge his au- 
thority, they assert, that such notice is not 
always necessary. How does this agree with 
the opinion of Mr. Hnme^ who says eipressly, 
that where the public prosecutor has it in his 

Sower to mention particulars, and where his 
oing so may be essential to the information 
of a panel for his defence, the Court will not 
oblige the panel to answer without his gating 
a fuU and particular statement of the charge 
against him. 

I come next to the argument maintained on 
the import of the oath. It is asserted, that an 
oath in certain terms was administered by the 
panel. I do not profess to understand the 
precise meaning of this supposed oath. It is 
rather loosely and indefinitely expressed. To 
understand it precisely is, however, not ab- 
solutely necessary to the consideration of the 
question before the Court, Whether this be a 
lawful oath, is no^ the question. The oath may 
be extremely wicked, and perhaps there is no 
one who now hears me wno does not think 
that there was a bad intention in it. But that 
is not the question before your Lordships. 
The question is, whether thai* oath amounts 

TO AV OBLIGATIOH TO COMinT HIGH TREASON? 

Where a man is indicted for the crime of mur- 
der, the question is not, Whether he has been 
guilty in other respects? whether he has 
committed a robbery or any other crime P — 
he has oidy to answer to the indictment for 
murder. Ine question here is. Whether the 
oath did purport and intend an obligation to 
commit high treason? For the oath is not said 
to be an ^ligation to commit murder or other 
felony. It is alleged to be an obligation lo 
commit tre^on, and to that allegation the ques- 
tion is confined. 

The averment of the pnblic prosecutor upon 
this point is expressed thus in the indictment, 
^^ which oath or obligation did thus purport 
or intend to bind the persons taking the 
same to commit treason, by effecting by 

giysical force the subversion of the Established 
ovemment, laws, and constitution of this 
kingdom." 

Mr. Cranstoun,. in his excellent speech, 
completely demonstrated the fuiUity of this 
averment, both in its form and in its sub- 
stance ; but it appears to me that an argument 
much less complete and powerful would have 
b«eQ quite somcient in such a case. For can 

O 



i 



195} 



57 GEORGE III. 



THalo/miUamSdgdr 



ri90 



it be possible to sustain an indictment aUeging, 
with so little specification, an obligation to 
commit treason? Who does not know that 
tbece are a great variety of treasons distin- 
guished from each other by difference of species, 
in the same mannerandto the same effiectas other 
crimes, which are known each by its species 
and so distinguished from other crimes which 
do not belong to that species ? Yet the indict- 
ment contains nothing to mark the species of 
treason which was to be committed. It ap- 
pears from his words, that the prosecnior 
wishes to charge the prisoner with a delin- 

2nency that has a relation to some treason, bat 
lat is all. His meaning goes no further; 
and such is not a legal meaning when express- 
ed in an indictment, as the substance of a 
charge to be tried. Indeed, it is so indefinite, 
that ] do not understand what it really imports. 
Cleariy it does not sufficiently describe any 
known treason. It seems to point at a treason 
to be committed by levying war. But is there 
any word about le^yin? war in the indictment? 
Not one syllable ; and yet it is acknowledged 
by every authority from Coke downwards^ 
that where a man is tried for levying war 
against the king, the levying of war must be 
specially set forth in the charge ; and however 
brief and general our neighoours may be in 
drawing their indictments (and they are more 
so than we), this specification is required, that 
the parties have conspired and actually engag- 
ed in levying war [Mr. Clerk here referred 
to Lord Coke and Sir Mathew Hale, and made 
some further .observations relative to a charge 
of levying war.] 

All this shows, that if in the present case 
the treason to be committed was levying war, 
that species of treason should have been set 
forth. But in this indictment, though the oath 
is set forth, and certain words are used, in- 
tended as an averment of its criminal ten- 
dency, the averment is in terms so vague and 
general, that it cannot be gathered from them 
what the prosecutor means as to the species of 
treason which the prisoner had in view. 

Thus the meaning of the oath, whatever it may 
be, is not sufficiently charged in an indictment 
proceeding upon the statute 52 of the king. 
And though an exposition of its actual mean- 
ing may be attended With difficulty (perhaps 
no <^rtainty can be had in expounding it), it 
is easy to show, that it cannot be regarded as 
a treasonable obligation, however objection- 
able in other re8|>ects your lordships may thin^ 
it. In considenng this obligation^ I shall lay 
«iside for a moment two circumstances that are 
immaterial to the question. Whether it is an 
obligation to commit treason ? one is, that it 
is an oolA— another, that it binds to secrecy; 
for these circumstances, though they are of an 
aggravating nature, do not make the ohligaHon 
more or less treasonable. As an engagement 
may be treasonable, without being in the form 
of an oath, so an engagement may be confirm- 
ed with an oath, without being treasonable or 
criminal at all. In one remarkable transac- 



I tion of this kind, an oath, when moposed wss 
I rejected by the most determined or the con- 
spirators. 

** No, not an oath : 



what other bond 
Than secret Romans, that have spoke the word. 
And will not palter?^ * 

The nature of a conspiracy is the same witk 
or without an oath, though an oath may be an 
aggravation of its wickedness. In the i^e»*' 
' tion whether the engagement was, to commit 
the crime of treason, I may therefore lay dot' 
of consideration the circumstance that it was- 
in the form of an oath. Again, an oath o£ 
secrecy may be wicked, even although the ia^ 
tention of the persons who t^e it is innocent 
in other respects ; and it will not make an en-^ 
gagement or obligation treasonable or othei^ 
vrise, that the parties to it were sworn to se* 
crecy. Ihe question as to the tme nature of 
the obligation, as being treasonable or not 
treasonable, evidently caimot depend upon 
the secrecy to which the parties were sworn. 
The form of an oath, and an oath too of se* 
crecy, may and will greatly aggravate the o& 
fence that is committed by entering into way 
conspiracy, whatever its illegal object may be. 
But neither the oath itself, nor the obligatioa 
of secrecy, will make that treason which is not 
treason, nor change an obligation to commit 
any illegal act or crime, in itself not treason, 
into an obligation to commit the crime of high 
treason. 

Keeping these important considerations in 
view, that an engagement may be very crimi^' 
tial without being treasonable — ^that die int^- 
vention of an oath does not make it treason* 
able, — ^and that even an oath of secrecy cannot 
have the effect to change a crime, how wicked 
and dangerous soever, into high treason, if 
the crime is not in itself high treason, but a 
crime of another character and description, — ^I 
shall offer some remarks upon the terms of 
this oath. And here I roust repeat, that the 
oath may admit of no certain or precise con- 
struction. It may be understooa in twenty 
different senses by twenty different persons. 
Perhaps no two men wonld agree with eadi 
other as to it» precise meaning. But my p»re- 
sent task is not to show the precise meaning 
of the oath, but a different and an easier task, 
namely, to show that it does not import an 
obligation to commit high treason. For this 
purpose- I shall offer a very few remtiks 
upon it. 

Nothing can be known of the nature of this 
engagement, but from the words of it. The 
party binds himself by an oath, and the first 
part of his obligation is expressed iii theta 
words : ^ That I will persevere in my endea-» 
vouring to form a brotherhood of affection 
amongst Britons of every description who are 
considered worthy of confidence ; and that £ 
will persevere in my endeavours to obtain for- 

* Shaksp. Jul. Cses. Act 2; Scene 1. 



t97] 



Jot Mminuitrhig unlatioful Oaihs, 



A.D. I8I7. 



1198 



all tke peofle m Great Britain and Ireland, 
not diaqnaiified by crimes or insanity, the 
elective franchise at the age of twenty-one, 
vilh free and eqaal representation, and annual 
parliaments." The purposes here expressed 
are, I piesame, innocent of treason, though it 
wonld not be easy to tell the precise meaiv* 
jng of the words, and it is evident that they 
hsLve no precise meaning. On the con- 
tiaiy, they are so extremely vague and 
indefinite, that every person taking such 
aa oath seems to be at full liberty to put 
his own meaning upon it, without being at all 
exposed to the reproach of refusing tb fulfil 
Ins obligation. Universal sufir^e and annual 
paxiiaments are very naturally supposed to 
Aave been the objects in view ; but still there 
is nothing in the engagement itself, nor in the 
manner of expressing it, tiiat is treasonable or 
even illegal in any respect. If the obligation 
had stopped with the words to which I have just 
lefierred, a prosecution for aidministering a trea- 
aonable oam would have been utterly absurd. 
But the obligation proceeds with other 
words, which are supposed in the indict- 
mast to be treasonable, ^ and that I will 
SQpport the same to the utmost of my power, 
ei^er by moral or physical strength as the 
case may require." These words are the 
foundation of Uiis indictment, and the material, 
if not the only c^estion, as to the relevancy, 
depends upon their meaning, or rather upon 
die question, whether they sidmit of no mean- 
ing or construction but one, the meaning 
alleged by the prc^ecutor, who argues., that 
they purport and intend to bind the party 
taking the oath to commit the crime of high 
treason. It is to be considered, whether the 
words have that treasonable meaning, or if that 
ia not their meaning, it is evidently of no con* 
sequence what they mean. 

The words of the oath now under considera- 
tion bind the party to wpport the uxme ; and 
there has been some argument as to the mean- 
ing of supporting the uane, as the words occur 
in this part of the oath. It was said for the 
prisoner, that when taken along with the pre- 
vious words of the oath, the meaning of the 
whole is, that the party should persevere in his 
ehdeavours, and in particular, his endeavours 
to obtain annual parliaments and universal 
iufirage, and also to support the same, namely, 
the annual parliaments and universal suffrage, 
when- obtained and recognized by law. Ao^ 
ooiding to this construction, the oath in- 
tended any thing but treason. It was to sup- 
port a l^al establishment when it should be 
obtained, and not even to support an attempt, 
though legal, to obtain a change of the exist- 
lag laws. And this view of the oath seems to 
be perfectly well-founded. On the one band, 
there is an mcbngmity in saying, that the party 
will support his own endeavours ; and, on the 
tither, the expression, ** support the same,'^ is a 
relative thai can only apply* to the last antece- 
dent, unless it appears m>m the grammatical 
«Mistxiictioii, or ttou^ the meaning of the con- 



text, that the relative necessarily applies to 
former antecedents. But that is not thecase here. 
There is a disjunction, not only in the sense, 
but in the grammatical construction, of the 
subject of annual parliaments and universal 
snfnrage, from the previous part of the oath. 
The more natural construction of the obliga- 
tion to ^ support the same " is obtained, 
therefore, by referring it to a support of the 
wished-for changes when recognized by law. 
And there is another consideration, which 
leads to. the same determination of the ques- 
tion. There are many rules for the interpreta- 
tioapf words ; but the great rule of interpreta- 
tion in a criminal charge is, that in case of 
doubt, that construction which is roost favour- 
able to the accused must be adopted. And if 
the prisoner is entitled to the benefit of the 
rule I have just mentioned, J cannot see much 
difference betwec-n the interpretation offered 
on his part, and that which has been contend- 
ed for by the prosecutor. For, whether the 
phrase, ** support the same/' shall be referred 
back merely to the proposed changes> when 
obtained, or to the endeavours to produce 
them, still it must be held, that the support to 
be given is intended as a legal, and not as an 
illegal support, and rather as a support of the 
law itself, to be appealed to in every stage of 
bis endeavotirsby the person taking the oath, 
than as a support of illegal attempts to over- 
turn it. 

But the argument of the prosecutor is, that the 
clauses now under consideration' do not merely 
bind the person taking the oath, to support 
his endeavours at innovation, but to '' support 
the same to the utmost of his power, either by 
moral or physical strength as the case may 
require.'' The prosecutor seems to think, that 
these words complete the treasonable obliga- 
tion, and leave no doubt whatever as to the 
meaning either of the party who administered, 
or of the party who took tne oath. That there 
should be no doubt as to the meaning of these 
words, appears to be not a little extraordinary, 
when it is considered, that if they have any 
meaning at all, it is a meaning as vague, in« 
definite, and uncertain, as can be imagined. 
Yet the prosecutor thinks, that tliey can mean 
nothing but treason, and he will not allow 
that any other meaning can be put upon them. 
Even the uneducated people, for whose use the 
oath was contrived, must, without all doubt, 
have understood, that it was the purport of 
these words to bind them to commit treason ! 

These assertions are finely exemplified by 
the abortive attempt made in the iudictment, 
to put any intelligible meaning upon the words. 
The prosecutor has not been able to apply 
them to any description of treason, excepting 
that constructive treason, which he would re- 
vive after it has been abolished for several 
centuries. And here it is proper to notice an 
inexcusable gloss in the indictment, as to the 
misaning of the words now under consider* 
ation. The words of the oath are, f^Iwil) 
sapport tiie same to the utmcet of my power, 



199] 



57 GEORGE III. 



trUd of WaUam Edgar 



raoo 



cither by moral or physical itrtngthf* but it is 
alleged in the indictment, that the treason was 
to be committed, ^* bv effecting by physical 
foiie, the subTersiott, &c. Here the word 
itrenjgih is changed into the wordybrce, a word 
of a different meaning. It has been said, that 
th^ words are synonymous. If that is the 
case, why change the one for the other? But 
they are not synonymous. It is very true, that 
on some occasions either word may be used, 
without much, if any, difference of meaning. 
But the same thing may be said of words, that 
so far from being synonymous, have significa- 
tions that are very different. The distinction 
between strength and force is quite obvious. 
Strength refers to jKntwr,— force to the violeni 
$me of that power. Force always implies vio- 
lence, but strength does not. A precept in 
the Holy Scriptures is thus expressed, '* Thou 
shalt love the Lord thy God with aU thy heart, 
and with all thy itrengtk." How would this 
passage read with the word force instead of 
the word itrength? To support with moral 
and physical strength does not mean that vio- 
lence is to be used at all. So far from mean- 
ing that violence is to be used in attacking 
others, it does not necessarily mean thai vio- 
lence which may be used in resisting the 
violent attacks of others. 

Thus, it has been assumed, with very little 
ceremony indeed, that the moral and physical 
strength referred to in this oath, was to be 
applied for the purposes of treason. It seems 
to DC just as reasonable to take it for granted, 
that the moral and physical strength was to be 
employed in the commission of any other crime. 
Can a reform in parliament be promoted only 
by the commission of treason ? No, it will be 
answered ; but treason, if it was useful or ne« 
cessary, was to be committed. Then, if the 
parties wer^ not to shrink from the crime of 
treason if necessary for the^e purposes, it must 
be supposed that they would have been 
equally ready for the commission of any other 
crimes. But, I ask, whether, according to the 
meaning of this oath, the parties who took it 
were bound to commit murders, robberies, 
thefts, eveiy sort of crimes, in order to pro- 
mote reform in parliament? Is it possible 
that any human Deing can be so destitute of 
charity and common sense as to put that con- 
struction upon the oath ? When I bind my- 
self to forward the purposes of reform to the 
utmost of ray power, by moral and physical 
strength, am I bound to commit all or any one 
of the crimes which have been mentioned? 
Must I rob on the highway in order to promote 
annual pariiaments and universal suffrage? 
And if the oath is not an obligation to commit 
crimes generally, is it not absurd to say, that 
it is an obligation to commit the greatest of all 
crimes, the crime of treason ? To maintain a 
proposition so monstrous, is the best example 
to prove the danger and atrocity of charsres of 
constructive treason. Suppose one of the 
persons who are stated in the indictment to 
nave be^ engaged in a conspiracy; bat whose 



names 4rt not commuoicated, had been told 
that the oath being an obligation to support 
the plan of annual parliaments and univemd 
suffrage to the utmost of his power, by moral 
and physical strength, so he was required to 
commit some great crime, an assassination for 
example. If such a conversation among these 
conspirators can be supposed, the person ad* 
dressed might surely answer, I engaged to do 
every thing in my power to obtain annual 
parliaments and universal suffrage, but I have 
not engaged to do any thing that is against 
law — ^there is no such obligation in the oath. 
Could any one of the fraternity have replied, 
you are bound by the obligation, and must now 
perform the part you have undertaken : This 
assassination wili support the cause of univer- 
sal suffrage; and it is an act within your 
power. This reasoning would hardly serve ; 
and if there is no obligation to commit a great 
crime, there is just as little to commit a small 
erime. The oath does not purport or intend to 
bind the party taking it to commit any crime 
whatever, or even to infringe the slightest rule 
of morality. 

Nor is there any difference between a mere 
paction in such a case and an obligation 
strengthened by an oath, how tremendous 
soever. As to the present question, the cases 
are quite the same. 

But it is said, that if the intentions of the 
parties were so innocent, why take, an oath ? 
Why this obligation to secrecy ? I have an- 
swered that sdready. I do not know why 
there was an oath at all. I do not know why 
it was an oath of secrecy. I have heara, 
indeed, that some politicians have not the 
most absolute confidence in each other. 
There are animals known by the name of rats, 
of whom I sometimes read in the newspapers, 
who are said' even to infest a certain great 
assembly. Some of those who were engaged 
in this association may perhaps have suspected 
that animals of that species might get amongst 
them, and, in order to prevent such an acci- 
dent, they had recourse to the oath. Why 
was there an oath of secrecy ? I see no rea- 
son why they should have bound themselves 
to secrecy, ant is secrecy to imply the great- 
est atrocity of conduct? If they wished fbt 
secrecy, does it necessarily follow that they 
were to commit treason? Many enterprises 
require secrecy. That there were persons 
whom they did not wish to offend, might be a 
sufficient reason for their secrecy. . Jt would 
be very unsafe, indeed, to infer the illegality 
of any combination from the circumstance 
that it is held together by an oath of secrecy, 
but it would be still more unsafe to infer a 
treasonable conspiracy upon such flimsy 
grounds. But the question is not, Whetiier 
the obligation to secrecy was right or wrong ? 
The only question is. Whether Uiere is in this 
oath an obligation to commit treason? The 
question is not. Whether the panel committed 
treason in any way? but it is. Whether .there 
is in the oath any obligation to conait trtSf 



SOI] 



Jor AimmUUring unkmfiit Oaiki. 



•cm? OntbeM <iM«tk)D0^ I think it iiiinec«8- 
lary to trouUe your lordslupft witili any farther 
obsenrations. 

lard Jtatke Clerk, — ^After the uncommonly 
able arguments which you hare heard from 
both sides of the bar, die question for your 
lordships' consideration is. In what manner 
jon are now to proceed in determining whe- 
ther the present is a relcTant indictment P 

Lord EermamL — ^I had no doubt in my 
mindy when I first saw the Indictment, that it 
was relevant. But a great deal has been said 
to-day on the competency of alleging one 
crime in order to proTe another. I have formed 
no opinion on the objections which have been 
stated to the indictment ; and being desirous 
to understand them thoroughly, I wish to see 
them discussed in informations. Several au- 
thorities have been cited, particularly by Mr. 
CranstouUy and it would oe proper to have 
them fully stated, before giving any opinion 
with regard to them. 

Lord GiiSa.'—I am of the same opinion^ 
and strongly wish to see Informations. 

Lord FUmilfy. — ^I am particularly anxious to 
consider that point which we have heard de- 
bated, and which is of general importance — 
I mean, the question as to the admission 
of the narrative part of the indictment to 
proof. 

With regard to the other objections, I have 
read all the authorities, and should have been 
ready to give my opinion upon them. It does 
not appear to me, that the cases of forgery 
alludea to are analogous to this case. If 
special acts of treason had been stated, the 
introductory part of the narrative might have 
been admitted to proof. But as the minor 
charge is not treason, but a different erime, 
zny mind is not yet made up to the opinion 
that the indictment is relevant. As far as I 
am able to judge, I cannot help thinking that 
the panel, if acquitted on tms indictment, 
might be again tried'for treason. - 

. Lord JuUiu Cierk. — I am much in the situa- 
tion of my brother who has last spoken. In 
leferenoe to the meaning of the oadi, I have 
given great attention to what has be^ said ; 
and I had looked into authorities, besides 
those referred to to-day. 

As -to the other point, it has been most ably 
argued, and is deserving of most serious and 
d^iberate attention — ^whether it be competent 
to let the public prosecutor . into a proof of 
the nairative of this indictment. Tnat is a 
point which, in reference to ^is important 
case, and all other cases of a similar nature, is 
deserving of the. most mature consideration. 
This, too, is the first time that an indictment 
has been broi^ht before us founded upon this 
statnte. I am .quite clear, therefore, that the 
solemn and regular manner of deciding the 
potottsin question is, to have Informations 
mepai^d, in which the uguments may be 
Jiilly czhansted. . . 



A. D. 18I7. 



XHTBaLocirrom. 



lam 



9thJpra, 1817. 
^The Lord Justioe-Clerk, and Loids 
Commissioners of Justiciary, ordain par- 
ties' procurators to give in InfSmrinations 
upon the relevancy of the Indictitaent, to 
see and interchange these Informations, 
and to print, and lodge the saose with the 
Clerk of Court in older to be recorded, 
and that within three weeks ftom this 
date : Continue the diet against the panel 
till Monday the 19th day of May next, 
at ten o'clock forenoon, in this place; 
and ordain parties, witnesses, assiiers, 
and all concerned, then to attend, each 
under the pains of law ; and the panel m 
the mean Ume to be carried baiw to the 
Castle of Edinburgh. 



COURT OF JUSnCLARY. 
May 19, ISIT. 

Rt Hon. Dmd Boyle^ Loid Justice Gerk. ' 
Lord Semani, 
Lord GiiHa. 
Lord PUmiUy. 
Lord Eaton. 

Comudfor $he Crotm. 

Rt. Hon. Alexander MaconochUf Lord Advo^ 
cate [afterwards a lord of Session and Justi- 
ciary, with the title of Lord Meadowbank.] 

Jamet Wedderbum^ Esq. Solicitor-General. 

H. Home Drummondf £sq. 

K Warrender, W. S. Agent. 

Cowmlfor WUliam Edgar, 

John Clerk^ Esq. 
Geo. Cranttoun, Esq. 
Thoi. Thornton^ Esq. 
Jamet Monaieff', Esq. 
FrandiJeJrwj Esq. 
J. P. Grant, Esq. 
Hemy CodAum, Esq. 
J. J, MfOTigfy Esq. 

G. TT. Boyd, W, S, Agent* 

William Edgar Vras placed at the bar. 

Lord Juttice Cierk, — William Edgar, attend 
to the indictment against you, which is now 
to be read. 

** William Edgar present prisoner in 
the Castle of Edinburgh, you are in- 
dicted and accused, at the instance of 
Alexander Maconochie of Meadowbank, 
his majesty's advocate, for his m^esty's 
interest: That albeit, by an act pass- 
ed in the fifty-second year of his pre- 
sent majesty's reign, intituled, * An act 
to rendet more efiectual an act passed 
in the thirty-seventh year of his present 
majesty, for preventing thf .admuuSter- 



] 57 6BOBGB IIL 

ingor taking nnUtwIbl oaths,' itistn/er 
aHa enacted, * That every person who 
shall, in any manner or form whatsoever, 
administer, or cause to be administered, 
or be aiding or assisting at the adminis- 
tering, of any oath or engagement, pur- 
porting ot intending to bind the person 
taking the same to commit any treason or 
mvtr&ty or any felony punishable by law 
with deadi, shall, on conviction thereof 
by doe eontse of law, be adjudged guilty 
of felony^ and suffer death as a felon, 
without benefit of clergy/ And fui^ther, 
by seetion fbnrth «f the said act, it is en- 
SK^ed, ^ That penona aiding and assist- 
ing at the administering of any such oath 
or engagement, as aforesaid, and per^ 
«>ns causing any such oath or engagement 
to be administered, though not present at 
the administering thereof, shall be deemed 
principal offenders, and shall be tried as 
such ; and on conviction thereof by due 
course of law, shall be adjudged guilty of 
felony, and shall suffer deaui as felons, 
without benefit of clergy ; although the 
persons or person who actually adminis- 
tered such oath or engagement, if any 
such there shall be, shall not have been 
tried or convicted.' And further, by sec- 
tion sixth, of the said act, it is enacted, 
* That any engagement or obligation 
whatsoever, iii th^ nature -of an oath, pur- 
porting or intending to bind the person 
taking the same to commit any treason or 
murd^, or any felony punishable by law 
with death, shall be deemed an oath within 
the intent and meaning of this act, in 
whatever form or manner the same snail 
be administered or taken, and whether 
the same shall be actually administered 
by any person or persons to any other 
person or persons, or taken by any other 
person or persons, without any adminis- 
tration thereof by any other person or per- 
sons:' Vet true it is and of vebitt, 
that you, the said William Edgar, are 
guilty of the said crimes, or of one or 
more of them, actor, or art, and part: 
Jn so for at you, the' said William Edgar, 
did, at secret meetings, and on other oc- 
casions, at Glasgow, or in the immediate 
vicinity thereof, in the course of the 
months of November and December 
1816, and of January and February, 181 74 
wickedly, maliciously, and traitorouslv 
administer, or cause to be administered, 
or did aid or assist at the administering, 
to a great number of persons, to the 
sufnount of several hundreds, etn oath or, 
engagement, or an obligation in the nature 
of an oath, bindhag, or purporting or in- 
tending to bind, the persons taking the 
same to commit treason; which oath, 
engagement, or obligation, was in the 
fbllowing terms, or t6 the following pur- 

Sort , — * In awful presence of God, I, A 
I, do voluntarily sw^ar^ Aat I will per- 



TrialofmiUam^Edgdr 



[304 



ievere in my endeavouring ia form a 
brotherhood of affection amongst Britons 
of every description, who are considered 
worthy of confidence ; and that I wiU 
persevere in my endeavours to obtain for 
all the people in Great Britain and Ire- 
land^ not disqualified by crimes or insa- 
nity, the elective franchise, at the age of 
twenty-one, with free and equal represen- 
tation, and annual parliaments ; and that 
I will support the same to the utmost of 
my power, either by moral or physical 
strength, as the case may require : And 
I do further swear, that neither hopes, 
fears, rewards, or punishments, shall in- 
duce me to inform on, or give evidence 
against, any meinber or members collec- 
tively or individually, for any act or 
expression done or made, in or out, in 
this or similar societies, under the punish- 
ment of death, to be inflicted on me by 
any member or members of such societies. 
So help me God, and keep me stedfast.' 
Which oath, or engagement, or obligation, 
to the foregoing purport, did bind, or did 
purport or intend to bind the persons taking 
the same to commit treason, by effecting by 
physical strength the subversion of the 
established government, laws, and con- 
stitution of this kingdom, and especially 
by obtaining annual parliaments and uni- 
yersal suffrage by unlawful and violent 
means. And, more particularly^ you, the 
said William Edgar, did upon the 1st day 
of January 1817, or on one or other of the 
days of tnat month, or of ]!)ecember im- 
mediately preceding, or of February im- 
mediately following, at a secret meeting, 
held in the house of William Leggat, 
change-keeper in Ring-street, Tradeston,- 
in the vicinity of Glasgow, or elsewhere 
at Glasgow, or in the immediate vicinity 
thereof, wickedly, maliciously, and traito- 
rously administer, or cause to be admin- 
istered, or did aid or assist at the admin- 
istering an oath or obligation in the terms 
above set forth, or to the same purport, 
to Peter Gibson, John M'Lauchlane, John 
Campbell, and Hugh Dickson, all present 
prisoners in the Castle of Edinburgh ; as 
also to James M^'Ewan, now or lately 
carding-master at Humphries Mill, Gor- 
bals of Glasgow, and M^Dowal Pate, or 
Peat, now or lately weaver in Piccadilly- 
street, Anderson, tn the vicintty of Glas- 
gow, vrho, conscious of their guilt in the 
premises, have absconded and fled from 
justice; as also to John Conneltoti, or 
Congleton, now or lately cotton-spinner 
in Calton of Glasgow, or to one or other 
of them, and to other persons, whose 
names are to the Prosecutor unknown, the 
said oath, or engagement, or obligation, 
to the said purport, binding, or purporting 
to hind, the persons taking the same 
to commit treason, as said is. (9.) '^^ 
further, you, the said Williain Edgar .did^ 



9051 



llll&llg^^OaiAf. 



A. D. Wrti 



upon the 4di day of Jtmiarj 1817, or on 
one or other of the dvjn of that monih, or 
of December ifiiBediately preceding, or 
of February immediately following, at a 
^eeret meetiiig held at the house of Neill 
MwiD, inn^keeper aod stabler in Ingram* 
street, Glasgow, or elsewhere at Glasgow, 
or in the immediate vicinity thereof, 
wickedly, maliciously, and traitorously 
administer, or cause to be administered, 
or did aid or assist at the administeiing 
an oath or obligation, in the terme above 
set forth, or to the same purport, to the 
said Peter Gibson, John M'Lauchlane 
John Campbell, Hugh Dit^uran, M^owal 
Pate, or Peat, and James M'Ewan ; as 
also to James Hood, present prisoner in 
the Castle of Edinburgh, Anarew Som- 
merWlle, John Buchanan, and James 
Robertson, all now or lately prisoners 
in Che Tdbooth of Glasgow, or to one or 
other of them, and to other persons, 
whose names are to the prosecutor un- 
known, the said, oath, or engagement, 
or obligation, to the raid purport, binding, 
or purporting to bind, the persons taking 
the same to commit treason, as said is. 
And you, the said William Edgar, having 
been apprehended and taken before 
Daniel Hamilton, Esquire, one of the 
SbertffiHsnbstitute of Lanarkshire, did, 
in his presence, at Glasgow^ on the 
6th day of March 1817, enxit and, sub- 
aeribe a declaiation ; and hai^g been 
taken before Robert HamilU^ fisqmra, 
Sheriff-depute of Lanarkshire, yOu did, ia 
his presence, at Glasgowy upon the fth 
and 8th days of March 1817, emit and 
subscribe two several declarations ; whidir 
declarations, being to be used in evidence 
against you at your trial, will be lodged 
in doe time in the han<u of the Clerk of 
the High Court of Justiciaiy, before which 
you are to be tried, that you tnay have an 
opportunity of seeing the same. At least, 
times and places foresaid, the said oath, 
or engagement, or obligation, to the same 
pvirport, binding, or purporting to bind, 
the persons taking the same to commit 
ireasoD, as said is, was wickedly, malici- 
oQsly, and traitorously administered, or 
csLuaed to be administered; and some 
persons did aid or assist at the adminis- 
tenng thertof ;^ and you the said Williahi 
Edgar are guiltj^ thereof, actor, or art and 
part All which or part thereof, bmg! 
nand proven by the verdict of an asatze*, 
hekm the Lord Justice General, the X^brd 
JusticeCleik, ind Lords Comraisiiioners of 
Justiciaiy, yoa the said William Eidgar 
ought to he pQfdshed with the pains of 
law, to deter others' nQm committing tfie 
like crimes in all time coming. 

^ H. Home Druxk oiTo, >1» D/^ 

LIST OF WITNESSES. 

t. Bfiiferi HamUUmt Esq. sheriff-depafta. of 
' Lanarkshire. 



3. Darnel fioantoi/Era. one of the 4i«ni^ 

substitute of Lanarkshire. 

3. Dankl WCaUum^ clerk to Joluji Dryi^ale^ 

sheriff-clerk of Lanar^hirs^ 

4. Matthew Butms^ clerk to George Salmond, 

procuratorufiscal of Lanarkshire. 

5. Jckn LeMUe, derk to the said John Xhj^^ 

dale. 

6. Jo$eiA Beidf writer ia Glasggy, 

7. Alexander Cal4ar^ sh«rilMip«r ia Ghun 

gow. 

8. Jaares Z^omsoa, derk to the said Joha 

Drysdale. 

9. Jletander Hynier, ehange-keeper, QM 

Wynd of Glasgow. 

10. Marion M^Laren^ 0x M*Lachla% now or 

lately servant to the said Alexander: 
Hunter. 

11. JbAnEo6er2Mm, inn-keeper and altahl«r/>aln 

lowgate Glasgow. 

12. Jgne$ CampbeU, wife of Thomas IXmr, 

steam-boiler makes and smith at GM-9 
wood and Company's foundry in Huichr. 
esontown, in the vicinity of Glasgow. . 

13. Janet l^eauMj now or lately servant ta 

Neill Munn, innkeeper aad stabler in 
Ingram-street, Glasgow. 

14. AliMon WUton, now or lately servant to the 

said Neill Munn. 

15. Matthew Fyfo, spiritrdealer in Wilio^*. 

street, Glasgow. 

16. Jean Boyd^ wile of the said Matthew Fyfek 

17. William Leggatf change-keepei;, iio Kin^. 

street, corner of Centra-fUreet, Tiadftth 
' ton, in the vicinity of Glasgow. 

18. John Mitchell, we^ver^ residing iRWilki*Vt 

Laod« Charles-street, Caltonof Glasgow. 

19. Eugh Vkkfca, present prisoner in the 

Castle of Edinburgh. 

20. Ptter Oiifion, present prisoner there. 

21. John M'Lauchlane, present prisoner there. 

22. IFt^iiam^ismion, presei^t prisaifier (hate. 
28. Jamet Haoa, pteaeat prisoner there. 

24. John Cam^Uf present prisoner there. 

25. nomas Smclair, present prisoner there. 

H. Homb DauMMOVD; A, J>. 

t • • • 

LIST OS ASSIZS. 

County of Edinburgh, 

Francii Carter^ Scdtf of BaUemo. 
Bichard Wooley^ of Whitehouse. 
Jame» White^ tobacconist in Dalkeith. 
Robert lyle^ baker there. 
John Woodj merchant there. 
JoAfi Bfoidn, farmer, Carrington. 
Atudreo) JohnUan, farmer. Primrose-bams. 

County of Haddington, 

William Aicheton, junior, of Dnunmore. 
John SommerviU Ox Moreham. 
WUliam Emfj farmer, Howden. 
John Brodiey £urmer. West Fentoa. 
Moheri Hope, fanner, FentOn. 

County of! LinUtbgoio, 

WiUiamGUn oiJAM», 



3071 



57 GEORGE III. 



Tml 6/ WiOam Edgar 



[308 



WiBiam Diwirmy'ypmifer, Bonnytoun. 
Jchn Trotter^ fiinner at Stacks. 
JMfft Toi/lory residing at Blackness. 
George TurvkuU^ fanner at Northbank. 

CUy cf Xdinburgkk 

Robert Fraur^ jeweller in Edinburgh. 
noma Bichardumy merchant-tailor there. 
J}amd Whiiekmfy watoh-maker there. 
Peter Feddie, tronk-inaker there. 
WUiiam Thtiter, upholsterer there. 
Aletumder BtmeU, coach-maker there. 
John Inoerarityy upholsterer there. 
George Yule, meroiant there. 
AleMmder Jtfii&e, saddler there. 
John Sieelf confectionet there. 
Jamee hmee, gunsmith there. 
Darnel Forreti, hosier there. 
Peter Smoeny saddler there. 
George Hunter, merchant there. 
Wilham Ret$, tailor there. 
Cktrlee M'Xeafiy draper there. 
JoHn Laing, saddler there. / 
John M'^ereon, tailor there. 
Franek Dmideonj confectioner there. 
WUliam Cooper^ boot-maker there. 
WUUam Dwnbretky hotel-keeper there. 

TowneflMth, 

John M^Kennef merchant in Leith. 
Archibald Clegkomy corn-merchant there. 
Thmm MatrUmy ship-builder there* 
FUierte Patereony painter there. 
CAorfef Bobertion, merchant there. 
John Sandertf a^nt there. 
JMi- Cir/cwer, Wright there. 

Ad. Gilliu. 

d. movtpsvmt. 

David Dot7oias« 



Lord Jmttke CfeHfe.--William Edgar, what 
do you say to this indictment? — ^Are you 
^il^ or not guilly of the charges contained 
mitr 

WUUam JS<(giar.— Not guilty, my Lord. 

Mr. Gronffotm.— The prisoner pleads to the 
indictment which has just been read, I have 
to state to your lordships, that he is advised 
to object to the competency of the present 
proceeding ; and I humbly submit that this is 
the proper time for stating «tbe objection to 
. your loraships. 

Your lordihips will recollect that the pri- 
soner at the bar was latelv indicted upon the 
statute the 52nd Geo. 3 , mr the crime of ad- 
ministering unlawful oaths, binding, or pui^ 
porting or intending to bind, the takers to 
commit die crime of treason. That indictment 
was regularly served upon the prisoner— he 
was brought to the bar — ^he pleaded not 
guilty^-and your lordships, upon hearine a 
debate upon the relevancy, appointed inior« 
mations to be giv^n in, and continued the 
time for doing so until this day. 

My lords, that criminal prosecution is still 



] in dependence against the prisoner. The diet 
has not yet been deserted so far as I know. 
I need not tell your lordships, that his 
Majesty's Advocate cannot desert a prosecu- 
tion, either eimplkiter or pro loco et tempore, 
without the permission of your lordsnips. 
Bf deserting nmplicifer, I mean here, deserting 
with a view to try upon a new indictment for 
the same crime. 

.While the first prosecution was thus in 
dependence, his Majesty's Advocate has 
thought fit to eiecnte a second indictment 
against mv client, calling him to answer at 
your bar mr precisely the same crime as was 
charged in the first mdictment. I submit to 
your lordships, that this proceeding is alto- 
gether incompetent — because the diet in the 
first indictment is not yet deserted; and that 
it would be equally incompetent to proceed 
at present on the second inaictment, even if, 
on the motion of the lord advocate, the first 
should now be deserted. I shall state, in 
veiy f^w words, the grounds upon which I 
think our objection is irresistible. 

It is known to your lordships, that by the 
criminal law of this country, as now firmly 
established, every person who is brought to 
the bar upon a criminal charge ii entitled to 
have the indneuBoi fifteen free da3rs. What 
benefit could be derived from the indnda if 
he eouid be brought to trial, and during the 
dependence of that trial induda might be 
running against- him all the while for another 
trial on account of the same crime? Why, he 
would be placed in a situation in which the 
law certamly never meant him to be placed ; 
he would be perplexed and embarrassed, by 
being under the necessity of defending twp 
actions subsisting together at one and the 
same time. Observe how far this principle, 
if once admitted would go. The prisoner is in« 
dieted, he is brought to the bar, an objection 
is stated to the relevancy of the indictment, 
and 3rour lordships, after an argument of twelve 
hours upon the relevancy, find the indictment 
irrelevant. The next moment his Majesty^s 
Advocate takes a new indictment out of his 
pocket, and the prisoner is immediately put 
again upon his trial for the very same offence. 
Well, the second dav you have an argument 
upon the rele?ancgr of this second indictment^ 
an argument which also lasts twelve hours; 
and when that indictment is found irrelevant^ 
what happens next? A third indictment is 
produced by his Majesty's Advocate, and he 
msists that the prisoner shall again be tried. 
And thus there might be fif&n different 
indictments, under which the prisoner is ac* 
tnally kept upon his trial for fifteen days, 
being the whole mdueia contained in the first 
indictment; and upon the sixteenth charge, 
the panel might be brought to trial upon a 
relevant indictment, and without having had 
one moment's time to prepare his defence, 

I may be told that this is stating an extreme 
case, one which is not likely to happen. Such * 
a case certainly may not happen while my 



te»} 



Jhir Aim mim v Hg mfa^j^ Ouihi. 



A. D. 1817. 



{»!<» 



fiknd is loid adiocilo 9 bttt if whm I Iwi^ 
•tated ought happen in ao estpeme case, it 1% 
WMMigb |br my ammeiit. Eveiy poisiUa 
dttojger ol tkis koto ooght w lie guarded 
agaiMt, ibr expeneDce'- .taaches w that cri- 
niDa) p B O WMttti oDS are often reaoxted to Aom 
ambition^ ittreDge, aad other impfoper mo- 



Aa % geneial rale, therefore, in the. law of 
SootkocC I affirm that if a peiaoa is indicted 
%9K%. crime, aad if he oomea to the har, and 
ple»ob JO that indictment, then there is » a de- 
pending psooem apaioat him, imm^vahkk he 
cattttbt again be cited tO'anawer Tor the fame 
cikaige, aad in that way be deprived entirely 
of ih« beneit of hii MiCht* Ine moment he 
baa pleaded to hia indictment, it ia incompe- 
tent to have another indictment running 
aigainat him for the aame ofibnee. 

There are variona waya in which I might 

iilaatrate the haidihip aad oppieation which 

wooUL reaolt Aom a difiereni mle. Sappoae 

a pand faas-pleaded to an indictment and haa 

been actually pot upon his trial here, if the 

dfaiectton whidi' I. am now stating ia not a 

good objection, his Mi^eat/s Advocate mi^ 

aaisa another indictment, reqoiring him to take 

hia trial at a distance^ for instance' at Aher* 

deen, the day after the diet of the first landict^ 

men^ whidi is to be tried at Edinburgh, and 

ahat i» the vaiy purpose of d^eiting the fint 

indirtmeat and paoceeding upon the second. 

In thia veiy case it b pomible that the panel 

any hare fifty .witnesses to examine, and of 

eonrae he ia bound to have Ihem here to-day 

in caaa the trial ahonld go on on the fonaer 

indictmenl. Bnt if the fornier is deserted, 

and a new one called at Aberdeen to-mortow, 

ia what manner,! would ask,. is the paod to 

tianapnrt his wime^aea toAberdeen? ThetadMr 

cac an giren by law for the very purpose of 

pwiferting the accused against surprises of dua 

land; bnt the practice-alteBaipted on -the part 

of the Oown would defeat that purpose. 

It ia in .-vahi to aay that the Court would io- 
t arf e m to give ledieas, if an oppreasive pio- 
needing oriha aataie I hare supposed were to 
he attempled. Ihat plea was once uiged, 
when a pioeecnter, inaefiaaoe of all law, had 
jHt given the eadiaaiy iadbicHr, and I am sorry 
to say, thai it was listaned to by the Conit. 
The Kbel oonta^ied indbaur of twelve daya 
on^; and .iribea <tbe panel eomplained, he 
waa toldj th«t i£ he had applied to ^e Court 
iw hngfar tiflM, it monld have been allowed. 
The olgeetion was eocoidingly repelled, bnt, 
aa lfe«ilume justly observes, it was most 
im p ro perly repelled^ 2f the ordinary rales of 
JaWy aelded by the maclioe of centuries, are 
4a be diapeaaed witn» and a priioner lotted 
iDversipoathe.Cooit:foraadieaa, iaitreimagb 
aaaaffithat.he .wsllobtain aaa favour wMt 
ha in icatifled ito teiMd aa a right? If thia 
be dia.eaae> .all lenuaty, all liberty ia at aa 



Tins vmiaasaad very gmathardahipa would 
mialt, if^paaems^ admit, thAt after a panoa 
VOL, XXKIIL 



hatii^MM to one erimjnal.prosec«^o, and 
iwhi)e it is in dependence —for example, while 
ixiformations are preparipg^ on the relevancy 
«-4be tnduci^ of another prosecution for thf 
same crime may be current. 

I do not 9ay that the question .which I am 
now stating. to your loidshipa has been de- 
cided in (enganii l^ the jQQurL If it has so 
been decided, it has escaped m obaeryation, 
and the learned counsel upon the other side 
,of the bar will mention the cases in jivhich the 
objection has occurred, and has been repelled. 
For any thing that I luiow, there may he in- 
.atances of trials having proceeded on indict- 
.ments raised in the same manner as the pre* 
sent; but tfiat must have happened where the 
objection waa not stated ; and you will ,easUy 
see, that in many cases . it might be for the 
interest of the panel to wave .the objection^ 
In many cases a prisoner would wi^h to be 
tried, without Any indnKUBi for instance, in a 
charge of a subordinate or inferior nature^ 
there may often be an interest on the part of 
the prisoner to wave thU objection. But what 
I found upon is thia, tht^ as foraa I have been 
able to discover, this objection haa not been 
stated and.repelled ia lenaiiai. 

Bnt. though I cannot refer to a precedent in 
which it haa been sustained, I think there has 
been a case decided which apjpears to me te 
proceed on the vmy same prmdple^ and to 
jdlnatrate aad support the argument which I 
■have now the honour to maintain. .There are 
instances of hdf a do«en indictments having 
been served upon a prisoner, one after anothea, 
.and calling him to attend at the bar at diS- 
•ferent times ; and, in particular, that' happen^ 
ed in the celebrated caae of colonel Francis 
X^harteris. Four difierent libela were executed 
.against 'him to take his trial for the same 
eriine, all cdluig him to appear ia Court at 
diffi»ei}t<tiniea; .and when he appeared upoa 
the first of thesd indictaoeats, he stated that 
•ha ^as act beand to plead at all, until the 
4ord advocate selected the indictaftent upon 
whtoh he intended to oarry oa the trial; and 
ihe Court found,- or it was admitted on the peat 
of the prosecution, that this was necessary^; 
and accordingly, befoide the trial prooeeded, 
it was necessasy to desert three of the indict 
ments-»and when they wareao deseoted, then, 
and not till then, vraa ooleael Charteria rch 
quired 4o plead. 

Is not that case precisely the same m trta- 
(Buk as the present P For, if before colonel 
Cnarteris pleaded, every indictment, then in 
^dependence but one was necessarily deserted, 
— ^now that my. client haa pleaded, there being 
but one indictment when he pleaded, it fol- 
iows for the same reason, that other three in- 
dictaaenta cannot be hung over* his head. K 
yon ,do not jupport this objection, you place 
n^ dient in that situation in which it was 
deoided that colond Charteria could not be 
placad. If ooload Charteria had plead^lo 
hia hrat indictment, while the others li^em in 
snmense, he would have been in the siiuation 



3071 



57 GEORGE IIL 



TrM of Wmam Edgar 



[308 



WUHam Bmmon^jom^^ Bonnytoun. 
Jchn TVntter^ former at Stacks. 
JMfft Toifhry rending at Blackness. 
George iSiirviiuUy farmer at Northbank. 

CUy of Edkiburgk, 

Robert FroKTy jeweller in Edinburgh. 
l%oma» BicharAony merchant»tailor there. 
Damd WkiieknPy watch-maker there. 
Peter FeddSe, tronk-maker there. 
WiUiam Droiter, upholsterer there. 
Aletutnder lUmtUf coadi-maker there. 
John Inoerarity, upholsterer there. 
Cfeorge Yule, merdiant there. 
Alexander Aindie, saddler there. 
John Sieelf confectionet there. 
Jamee Iimet, gunsmith there. 
Darnel Forreti, hosier there. 
Peter Saweriy saddler there. 
George ^mier^ mer^ant there. 
WU&m Ron, tailor there. 
Ckarlee WLun, draper there. 
John Laingf saddler there. 
John M^PiUroony tailor there. 
Pnmdk Tknidaonj confectioner there. 
WUUom Cooper^ boot>niaker there. 
WUUam Dumbrecky hotel-keeper there. 

ToumofLeith, 

John M^Kennef merdiant in Leith. 
Archibald Clegkomy com-merchani there. 
Thinmt Morion^ slup-builder there. 
Rohert$ Patereooy painter there. 
C4aHSef Boberteon, merchant there. 
John Sandertf a^nt there. 
JMii- Cir/cweri wnght there. 

Ad. Gillibs. 

d. movtpbhmt. 

David Dot7oia8. 



Lord Jtatiee CfeHfe.--William Edgar, what 
do you say to this indictment? — ^Are you 
guilty or not guilty of the charges contained 
mitr 

WUlimn JS<(g)ar.— Not guilty, my Lord. 

Mr. Gmmifotm.— The prisoner pleads to the 
indictment which has just been read, I hare 
to state to your lordships, that he is advised 
to object to the competency of the present 
proceeding ; and I humbly submit that this is 
the proper time for stating «the objection to 
. your lorafihips. 

Your lordships will recollect that the pri- 
soner at the bar was lately indicted upon the 
statute the 52nd Geo. 3 , for the crime of ad- 
ministering unlawfol oaths, binding, or pur- 
porting or intending to bind, the takers to 
commit die crime of treason. That indictment 
was regularly served upon the prisoner — ^he 
was brought to the bar — ^he pleaded not 

Snilty — and your lordships, upon hearing a 
ebate upon the relevancy, appointed infor* 
mations to be giv^n in, and continued the 
time for doing so until this day. 
My lords, that criminal prosecution is still 



in dependence against the prisoner. The diet 
has not yet been deserted so for as I know. 
I need not tell your lordships, that his 
Majestjr's Advocate cannot desert a prosecu- 
tion, either impHeUer or pro loco et tempore, 
without the permission of your lord^ips. 
Bf deserting emqUiciter, I mean here, deserting 
with a view to try upon a new indictment for 
the same crime. 

.While the first prosecution was thus in 
dependence, his Majesty's Advocate has 
thought fit to eiecute a second indictment 
against my client, calling him to answer at 
your bar ror precisely the same crime as was 
charged in the first mdictment. I submit to 
your lordships, that this proceeding is alto- 

S ether incompetent—- because the diet in the 
rst indictment is not yet deserted ; and that 
it would be equally incompetent to proceed 
at present on the second inaictment, even if, 
on the motion of the lord advocate, the first 
should now be deserted. I shall state, in 
very fow words, the grounds upon which I 
think our olijection is irresistible. 

It is known to your lordships, that by the 
criminal law of this country, as now firmly 
established, every person who is brought to 
the bar upon a criminal charge is entitled to 
have the mdueia of fifteen fi«e days. What 
benefit could be derived from the indnda if 
he could be brought to trial, and during the 
dependency of that trial induda might be 
running against him all the while for another 
trial on account of the same crime? Why, be 
would be placed in a situation in which the 
law certainly never meant him to be placed ; 
he would be perplexed and embarrassed, by 
being under the necessity of defending twp 
actions > subsisting together at one and the 
same time. Observe how far this principle, 
if once admitted would go. The prisoner is in« 
dieted, he is brought to Uie bar, an objection 
is stated to the nlevancy of the indictment, 
and your lordships, after an argument of twdve 
hottis upon the relevancy, find the indictment 
irrelevant. The next moment his Majesty's 
Advocate takes a new indictment out of his 
pocket, and the prisoner is immediately put 
again upon his trial for the very same offence. 
Well, the second davyou have an argument 
upon the rdevancy of this second indictment, 
an argument which also lasts twelve hours; 
and when that indictment is found irrelevant, 
what happens next? A third indictment is 
produoed by his M^esty's Advocate, and he 
insists that the prisoner shall again be tried. 
And thus there might be fifteen different 
indictments, under which the prisoner is ac- 
tually kept upon his trial for fifteen days, 
being the whole mdueia contained in the -first 
indictment; and upon the sixteenth charge, 
the panel might be brought to trial upon a 
relevant indictment, and without having had 
one moment^i time to prepare his defence. 

I may be told that this is stating an extreme ^ 
case, one whidi is not likely to happen. Such ' 
a case certainly may not happen while my 



imi 



Jar^dminktm^mtlai^fii^Ottihs. 



A. D. 1817. 



ino 



fiind is loi4 ad»acM«> bat if whit I buiit 
•Urted might happen jn »d eztreine cue, ft j» 
«ooagk Ck my tmmeoL £vecy possiUe 
dttoger «P tNs k«ia ought ta be guarded 
agaiiM^ Ibr experience teaches us that cri- 
naipal pwocatioM are often reaoctc^ to from 
ii]Bbiilie% lereage^ and other impioper mo- 



i^f genenl rale, therefore, in the law of 
Scettonn, I aflirm that if a penon is indicted 
te« crime, aad if be comes lo the bar, and 
pleads pi> that indictment, then there is. a de- 
pending pmess apinst him, dttrmgfohick he 
caanbt again be cited tO'answer for the same 
dwcge, and in that way be deprived entirely 
of «k« benefit of his imdmitr* llie mosBent he 
bas pleaded to hia indictment, it. is incompe- 
tent to hara another indictment running 
ugainst him for the same ofihnee. 

There are various ways iu which I might 
illnstcate the haidship and oppression which 
mntUL result fyua a diffurent role. Suppose 
« pansl haS'pleaded to aa indictmeai^ and has 
been actnsjfy pot upon his trial here, if the 
ohyeetion w]i<& I. am now stating is not a 
g«M>d objection, hie Maiest/s Advocate might 
taiae anolhec indictment, requiring him to take 
fcia trial at a distance/^ for instance* at Aber* 
deen, the day after the diet of the first rsodict- 
nent, whidi is to be tried at Edinboigh, and 
that iar the very purpose of d^erting the first 
indictq^ent and proceeding upon the second. 
In tins very case it is posaible that the pend 
wmj have fifty witnesses to examine, and of 
coarse he is bound to have them here to-day 
in casa thetiial should go on on the former 
iadietmem. But if the Ibrmer is deserted, 
and a aew one called at Aberdeen to-mortoWy 
ia what asanner, I would ask, ,is the psn^ to 
twiwport his witnesses toiAherdeen? Thetnda- 
csa are given by law for the very purpose of 
pwil s ctiiig the accnsed against surprises of this 
Bad; but the practicealteaspted on -the part 
of the Orovin would defeat that purpose. 

It is in vain ta say that the Court would ia- 
terfssa to give ledressy if an oppressive pro- 
cseding otibt aatnie I have supposed were to 
be attempted. That plea was once umd, 
when a prosoctttor, in oefiance of alt law, had 
asS given the OB^bosKry ts^b^, and X am sony 
so say, that it was bstened to by the Court. 
The libel oonta^ied Mmm of twdve days 
oofy; and .wbeft <the panel oomplained, be 
w« told, thai i£ he had applied to the Court 
iw hmgnr time, it would have been allowed. 
The olgeetioB was aocoidinf^y repelled^ hut, 
as Mr. Home jastly observes, it was most 
amfioperly vq^elled^ l£ the ordinary rules of 
J»r,. settled by the McUce of centuries, are 
40 he di^MOsed wtin» and a prisoner loUed 
0v«rsifMmlha.Couit>lQrsadiess« isk^enough 
Snsay».tbii<be .will obtain as a fasoufv wlMt 
bs is jeslsied ito dbsiasd as a tight? If thi»: 
be Sl»><s0e, all ssttarily, M liberty is at an 



Thus irasiMssjaod very gwathardshipt would 
aHult, if 9#B' ones edmit| Ihat after.a pssaon 
VOL. XXXIII, 



}^,p|Mded to one «rinunal.pn)siicaJ;iQO, aad 
iwldle it is in dependence —for example, while 
iqformf^ns are prepariiig on tha relevancy 
^Hthe tffduM of anodier prosecution for th^ 
samjB crime may he current. 

I do not say that the question .which I am 
now stating to your lorj^ships has been da- 
cided ia tenmm by the jQcturt. If it has S9 
been decided, it has escaped my observatioo, 
and the learned counsel upon the other side 
,of the bar wiU mention the cases in ;which the 
objection has occurred, and has been repelled, 
•for any thing. that I know, there may be in- 
.stanoes of trials having proceeded on indict- 
.ments raised in the same manner as the pre- 
sent; but that must have hapnened where the 
x>bjeotion was not stated ; ana you will .easily 
see, that in many cases it might be for the 
interest of the panel to wave .the objection^ 
Jn many cases a {prisoner would wi^h to be 
tried, without any imdmrni foripstanoe, in a 
ohaige of a subordinate or inferior nature^ 
there may often b^ an interest on the part of 
the prisoner to jwave thi^ olgection. But what 
I found upon is this, that, as far as I have been 
able todiaco^»r> this objection has not been 
stated and.reptiAed m krmim. 

But though I cannot refer to a precedent in 
which it faaa been sustained, I think there has 
been a case deoided which appears to me ta 
proceed on the very same prmciple, .and to 
dhistrate aad support the argument which I 
have now the honour to maintain. ,There are 
instances of hadf a do^en indictments having 
been served upon a prisoner^ one after aaothes^ 
,and calling him to attend at the bar at diS> 
•ferent times ; and, in particular, that' happen«> 
ed in the celebrated case of colonel Francis 
Charteris. Four difierent libels were executed 
, against him to take his trial for the same 
teiine, all cdling him to appear ia Court at 
diflfasei^t (times; .and wben be appeared upon 
the first of tbes^ indictments, be stated that 
■he ivas not bound to plead at all, until the 
Jord advocate selected the indictment upon 
whioh he intended ta cany ea the trial; and 
Ihe Court found, or it was admitted oa the past 
of the prosecution, that this was necessary^; 
and accordingly, bsfoSe the trial proceeded, 
it was necessacy to desert three of ihe indicW 
ments— and when they weteap descEted, then, 
and not till then, was oolosiel Charteris ra« 
quired to plead. 

Is not that case precisely the same m irta- 
(BnU as the present? For, if before colonel 
Charteris pleaded, every indictment then in 
dependence but one was necessarily deserted, 
— ^now that my client has pleaded, there being 
but one indictment when he pleaded, it fid- 
lows fi>r ihe same reason, that other three in- 
dictments cannot be hung over* his head. H 
you do not support this objection, you place 
n^ client in that situation in which it was 
decided that edonel Charteris could not be 
.placed. If cokmd Charteris had plead^ to 
Us first indictment, while the others were in 
snsnensei hawooid have been in the situatuui 



«lll m GiSOttGE III. 

in wliich it is wished to p1ac« n^rdient «t 
wesent. The principle of the rule in'cokmel 
Charteris's case is so wdl laid down by the 
learned author of the Commentariesy that I 
cannot refrain from stating it in his words. In 
Hie 4th iroU of Mr. Hume's works, or' the 2nd 
▼ol. upon the Law of SobHand, as to the ttkA 
ef Cnmes, page 34, after haTing* first stated 
tiiat the Court erroneously and improperty, in 
two preceding cases, had repelled that objec- 
tion, he proceeds to stale die case of Ghsrteris, 
^ On the one* hand, the p ro s ec uto r cannot say, 
that he is hardly dealt wiUi in being put to 
make his choice among his scTeral libels, 
whereof some* one at least ongfat td be correct, 
and executed in proper form. On tile either 
hand, tiie panel snifiBrs a disadTantage in con- 
ducting bts defence, unless snch an ellsotion 
shall be made. For there may be blunders in 
the body of one of those Ubeis, or in the Kst 
of witnesses, or in the manner of exeoudon 
against the panel or witnesses, which may be 
more or less a^ailaUe to him,^aiid may, perhaps, 
aerye to his acquittal, if the prosecutor insist 
ezclusiTclyon mat one. Whereas, aocoiding 
to the latitude allowed in Lindsay's oas^ even 
after making good such objections, the panel 
in nowise profits bv his success therein, and is 
dius perplexed and encumbered with die care 
«f a double set of pleas. I learn from a 
printed petition and answers (lor ther are not 
m the record), that' in the case of colonel 
Charteris, the panel had been serred with no 
fewer than four libels, calling him to several 
4iets, and o^erwise differing one from ano- 
ther; and of this proceeding he compliiitts, 
•ad insists that the proseentor shall specify the 
dittay on whidi he intends to go to trial. The 
prosecutor does so accordingly, in his answers 
to the petition ; and it appear» from the infor- 
mations in the ease, that the colonel nerer had 
to plead to any of those libels but one, which 
alone appears in the record.^ 

You therefore see, that before coloneV Ghar- 
teiis would open his mouth upon that indict- 
ment, he was entitled to have every cither ia^ 
dictment for ^ same crime pat out of the 



Trial^WiOiamtd^ 



(fflS 



tiie lord advocate has followed a diiennt 
eourse here, for he first caiied one indidment, 
to which the panel pleaded ; and after your 
lordshifM had ordered informations,. therebY 
continuing the dependence of the trial, whidi 
at Ibis very moment has not been deserted^— I 
say pending Ifcat process to whidi the prboner 
pleaded, he has been dtedliy another indict- 
ment, which is also now otet ms Wad; and he, 
nnd his counsel if they have dene th^ir duty, 
have been encumbered and peiplesed fiftiseh 
days in attending to different set»of pleas^ in 
these prosecutions. If the objection in the 
ease or colonel Charteris was sustained, yeo 
•uffht to sustain the olijection in thisuaie a|po. 

It majr perhaps be maintained, but there is 
no prindple to bear out the statement, that the 
second indictment, ▼irtuaUy'iihports an aban- 
donment jof the fimtindictimeiit. Anindictment 



mi^ be abandoned before the panetis-Mought 
into court and pleads: The lord advocate mi^ 
bring twenty indictments ; but before bringing 
tiie panel to plead, he most desert all- of then 
but one. And I ask. Can won case be pointed 
out to me, of three or four itfdictasents brought 
against an individual, and of hi» being brought 
to trial, not upon the last, but on the fiitt ef 
these iuiftctments^ The prindpto ia^ tfaa^ 
where several have been served upon a paae^ 
the seeobd is understood to be a virtaal desbr& 
tion of the first, the third of the second, and s« 
forth. The prisoner is always entitled to pl e a d 
to one only, and that is always the last. But 
tiie prindple by which » subsequent indictment 
is held to imply an abandonment of a foriMr 
indictment, cannot apply in the <saie befoi<a 
us ; for the moment that issoeis jeined betwees 
the prosecutor and the pttad, it is no longer in 
t&e power of the public pieseMtor to abandon 
the indictment, unlesshe db if for ever. Wheii 
the prisoner has pleaded to* an iifdictment, ke 
is then m mmitm m^ and ^ prasecnlov 
must have the express sanction of the Court 
for the deserting of the libd. This ift laid dnwa 
in so'many words by the learned Commenlntor 
at the 38th page of the volume already men- 
tiened : ''^It is also a case which sometiinea- 
happens, that,, thbogh still-resolved on bringi^ 
the pand to justice,, the presecutor sees canee^ 
however, not to insist in thetrid of him on 
that particular libel Because, periiaps, be has 
discovered some flaw in it, or the exeentioii» 
thereof; or on account of new and material 
evidenoe whidi has latdy come to 4iii know- 
ledge; and whidi requires an addition-to his 
list of witaesses, or may occasion ai difeunca 
in the laying of his charge. In dtuaiioaaof 
this sort, whtdi, notwithstanding all due ^wm 
on the prosectttor^s part,' must som etimes 
happen>' it is necessary to»tbe advancement of 
justice,tfaat he have the power of desertine hia 
present libel, without prsjodiee to bis lignt cC 
insisting anew, at the time, and in the foim^ 
which he shall find' advisable'. U indeed be 
had the absolute and uncontrolled privilegn ef 
throwing up h]s> process as often, and ft>r what 
causes soever he ideased ; this would be dan- 
gerous to the panel, who might thus, under fldae 
or alfoeted pretences, be hanased #ith repeatsd 
libds. Our custom does not therdbre trust 
the piniecutor to*diat extent^ but ifflows hiak 
only to move ih» court,, to desert the d»t pre 
Isss €i Umfore; in which r eq uest thiif ifiny 
refiisfr to gratify him, if diejf see cause to hi- 
lievethat he* intends any thing' oppreisivu or 
improper, or if thcrjr are not satisfied that there 
aro good reasons fiMrsuch an indidgence. It is 
true, the- stjple has crept into piMtioB, of M 
pviseafor merUng the diet; because it' ee 
often happens that his motion finr such a 
purpose IS sueoessftil. But in tnlth this is a 
tebse and inaccurate exprenion. For die aiet 
of desertion is^not his act, but timt of the Court; 
without whose permission and ddivesanoe'tlie 
process cannot be withdrawn in'this tempomry 
wm. And^ indiMd>'il he be ft private fafmh 



9131 



Jfer jiimMitJimg unlan^ld Oaiis* 



A.D. 18)1 



[S14 



^tttoTirteiCftwl Iwfe 4rii«Bd7«i«tiQo ten him ^ 
to itMiAt •■ Uiat Ubd; and to this thej maj 
hold him, and refuM to gire him new letten, 
if ihey tee cbom. Aooordingljry in the debate 

on the caee of Aftehihakl (Maich 1, 1768X the 
pioaecnlin Ixai^fydiapwna all pretenmns to 
9f^f such fibitrary. power. Hie mi|jes^f so- 
lictor vqireacntSy that he obsenreB in the infor- 
laatinnj on the part of the pand, Tery alanning 
oonaecpMnoes are endeavoured to be grafted on 
1^ doetaae |)led in behalf of the protecttior in 
4ue amt a» if it gare to the pnblie proseealoff 
a.fefy aMtraiy pofper^ f^preiiing 4he enb* 
jeets in this oovmtiyy by deaerting 4lieli ai often 
aahiateicyaiggested^ bntns aU the alarming 
c poa e yiencet pointed out are founded iq>on 
the aiqppoaition of a doctrine which ike never 
ilMnnft to plead, he thinks it now proper to 
liavo this matter cka^y undemtood; as the 
mtblie pfosecntor nerer pleaded, nor does he 
desire it to be beUoTed by the suljeets in this 
oooBtiy, thai he has anv arbitrary power of 
deseitanf diets wilbout the anthonty, and in* 
tervestioa of Court: which daeumstanoe to- 
tal^ removes all those apprehensions which the 
couBsd for the panel has grafted upon the sup- 
poaitioo, that an arbitrary |>ower of deserting 
3%Bla wan claimed in this, or in anj other cause. 
by the public prosecator.*' And it is stated 
in still stronger terms in his notes asto de- 




rcthis were an open petntt I.«annot hesitate 
for a toement to betiefe^ lh«t your lordships 
wonld decide it in the manner which I now 
suggest; 'for the hardships which would arise 
foam imar other decision are plain and great. 
Bnt I anbmit that it is not open; for diough it 
waan^decided ta ienmnii in the case of colonel 
<^nrleris, the objection, theroi maintained is 
fmctlT die same in principle* Upon these 
ffoanof I bnmbly submit to your lordships^ 
lliat the objection which I haie stated is well 



I think I have already observed, that the 
mistake cannot be rectified by the public pro- 
seentor deserting the former prosecution at 
this stagiB of the businem. The reason is, that 
the panel has already jiufiered all the perplexity 
and embaifamment which two co«exj8ting pro- 
secutions for the same crime must necessarily 
eecaaion ; and he has in consequence been de- 
prived of the benefit of his mduda. Both in- 
dietmeats h^ve been suspended over his head ; 
and lihe desertion of the first now at the veiy 
hoor of trial, will never authorize you to pro- 
ceed vridi ihe second. To what hardship was 
colmri Charteris exposed in going to trial upon 
indictment, white others were hanging over 
head, to whid> the prisoner is not exoosed 
in the piesent case ? Uolon^l Charteris anew 
well, tnat if he was once sent to a jury in one 
indictment, thu rest were for ever at an end. 
Bat the,Court'|hought,'that he was not bound 
ssi^i tc-mkad with four indiotments hanging over 
him; that Jie was apt bound to take his chai^ce of 
tlm Ktetu^y b«ii^i|iyti«d tP^Qoe of these, pro- 



aeentionsy and the verdict retuned in another. 
You wonld not force him into the preUminatr 
step of pleading and arguing the relevancy until 
evwy indictment but one was withdmwn. Now, 
I beg leave to ask the onestion where is the dif- 
forence between pleading to one indictment, 
and having other three afterwards served, or 
having all the four served, and being compelled 
to plead to one ? In the first case, j[ust as mudi 
as m the second, the four prosecntions are co- 
existent, and that is the hardship a>mplained 
of* The prosecutor has placed my client 
in the emysame predicament in which yon 
found eokmel Charteris could not be plaosd. 

I maintain, therefore, that the second in- 
dictnient vras served enoneoudy, beoanse it 
was served while the prisoner was under trial 
for the crime charged in that indictment. For 
it cannot be disputed, ttmt the prisoner u under 
trial from the moment that he pleads, althougji, 
accordi n g to our forms, the jiuy have not then 
entemd ujpon their functions. 

Now, if a prisoner can be brought again and 
again to trial for the same crime, — and he may 
be brought twenty times to trial for the same 
crime, while the act 1701 is suspended, as it is 
at present,— it is but fiur that he should have 
fifteen free days between each of these trials ; 
namely, the ordinary indMcim of the law. 

If you once admit the princijde on which the 
lord advocate proceeds, you might have these 
twenty trials goin^ on for twenty consecutive 
days, without respite either to the prisoner or 
to vourselvea. I beg to ask. If this would not 
only be to harass and perplex him, but to deprive 
him altoaether of the oenefit of his inducia? 
Could fifteen days so spent be called fifteen 
days allowed for preparation F The prisoner 
would be perfectly confounded, not knowing 
upon what day, or under what indictmeiit, ha 
was to be sent to the jury. 

I humbly submit, therefore, that the poipt is 
clear and established in principle, that the ta- 
ducU of no one indictment can run, even after 
the prisoner has jdeaded to another indictment 
for the same crime, consequently, although 
your lordships were to allow the lord advocate 
to desert the first indictment, that the prisoner, 
not havins had his tadacios under the second^ is 
not bound to plead to it. 

Mc HiMne Drummandi^l do not think that 
it is necessary for me to say much in answer 1^ 
this objection, as the point has been settled in 
practice long ago. , The whole question in dis- 
cussion here seems to be, whether it is neces- 
mry now for the prosecutor to pass expressly 
from the other indictment, or whether it is 
already virtually JMssed from? The learned 
gentleman was quite incorrect in speaking of 
ue prosecutor 'deserting the indictment,** 
instead of '< passing" from it ; as it is not the 
mdietmait which is said to be deserted, but the 
dki and besides,, the desertion is not the act 
of the prosecutor, but of the Court. If the 
diet were to be deserted, there mi^t be a 
doubt whether both indictments would not 



th^r^jrb^ ^tfnguished, as the diet «f bolfl 
happens to fall on the same day. Fuifber thta 
fhis, the prosecutor can have no interest hi ob- 
jecting to any mode of eztingnishrng the irst 
lA>el. He could hare no other mothre in nbt 
having recourse t6 the Ibrm of moring the 
Court to desert the diet; and he conceived 
that he was following a simpler course, 
and one less calculated to create trouble and' 
Aehy. 

I happen to have loioied into the practice ef 
late years as to the point in question, and I 
naintainy that the proceeding in tMs case afe 
agreeable to the practice which your lotdsUps 
have sanctioned and shall mention iht cases 
that have occurred. lindsay Crawford was in* 
dieted to stand trial on the 9m of Januaiy ldl3. 
The diet was continued, on the motion of his 
own counsel, to the 3rd of February; before 
which 3rd of February new criminal letters 
#ere raised against the panel ; and the trial 
proceeded on the criminal letters, without any 
notice being taken of the first indictment, 
though the trial on the criminal letters took 
place on the same day^ the 8rd of February. 

Mr. Mum^, — ^Had he pleaded ? 

Mr. Drumntond. — He had not. He had come 
into court, and the diet was continued upon 
the motion of his own counsel. It is of no 
consequence to the principle of tlie objection 
whether the panel pleaded to the indictment or 
not ; but, at all Events, there are cases enough 
where this proceeding has taken place after 
panels have pleaded. 

The veiy next case, that of lliomas Somet^' 
▼ille, was one of that description. He was in- 
dicted to stand trial on the 25th of January 
1813. On that day a long pleadiag took place 
iipon the relevancy; conseqqetitly he did plead 
to the indictment. There cojiifd iiot have been 
d debate, If he had not pleaded not guilty. 
Informations 'on the relevancy were ordered to 
be given in on the 15th of February; and be- 
fore that time, new criminal letters were raised 
which fell upon the same day, the 15th of 
February. I took a note at the time of a con- 
versation on the bench as to the particular ob- 
jection which has now been stated, and which 
I beg leave to read, i see two gentlemen on 
the other side of the bar, who can correct jne 
if I am inaccurate, who I remember to have 
f een counsel in that cause. *^ Lord Hermand 
asked, if it was not proper in such a case to 
desert former diet pro loco et tempore ?— Ob- 
jected, That former indictment abandoned by 
service of this. And Court said they would 
adhere to the practice, and cate proceeded" I 
had added this remark to the note ; ''Had not 
the diet fallen upon the same day, it would 
have dropped out of the record, by the passing 
of. the day without its being called.'^ Now, 
can the prosecutor be compelled to .appear or 
insist in any hbel he does not choose to insist 
in f and if not, must not the diet fall and be 
dropt for want of aa instance ? 
' VpCB d)« 13th of Jane 1814; Johntfom 



TrM of fymm Edgar 



C216 



wtti brought fothebaronachHrga^ffohnQiy. 
Pleadings at great length took place cia the 
relevancy of the iadictisent, the pand bavivje 
pleaded not guilty. Infonoatioiia were CfdereS 
to be given in on the 8di of Jaly, and aiaiaar 
proceedings took place. Before that day m 
new indictment had been served, Ae diet 
whereof fell upon an earlier day, aild wpom 
that day informationB wer^ ofdered of iieia 
upon the new iadictment. 

Jhett was also the leeent eaaeof lbs TiMstle 
Bank of Glasgow against Befli and DMgla*^ 
After the panel Dcwglas had pleaded g^fty, 
informations were oideied^ aan a new indiot- 
ment was, in the mean time, served upon ^m 
panel, which was understood, as is the Ibi 
cases, to have eattfaiguiahedthe first. 

These are all the cases since 1811, iik 
it was possible for this olje^etion t* eicoiir;- 
and the same practice took place h^ a& of 
them that has been followed here, whicb eoaki 
not have happened if this objectioB had been' 
wMl founded. The plea of its having pasMd 
luff tUetUio cannot be maintained, as it is Iha^* 
daiy of die Court to see that eve^ thing shidl* 

So on according to the proper forms of hnr, a- 
uty which the Court at all times disdiarge^ 
whetlier the panel's couiisel think it totMr 
fnterest to state objectiona or not. A stroa|;ar 
example of this cannot be' ^en 4ian &tt 
very case of Douglaa, Where tibe Ceait etrdered 
informations on the relevancy of an faidict-^ 
ment to which the panel had pEl^aded ndlty. 

The embarrassment of the panel witn dilpei^ 
ent libels, and the other evils coMphoned e^' 
are entirely imaginary. The service of ^ ttdr 
indictment, or at least the eidlitig of the diet,- 
extinguishes the old one ; ahd th^ is my^Ub^ 
sistincr indictment but ^ last obe' widdi i^ 
served on the panel. If any diet were to bef 
deserted at all, it would be the diet of tto 
last, as no notice could be taken of thefint* 
If, however, your lordships dioold have am 
dpubt upon the subject, the prosecutor wm 
pass from the indictment, or will- move for a 
desertion, or follow any coune that tho Cowt 
ffiay think best calculated to put an end to Ae 
first indictment, if its existence shotild still bo 
thought possible. He has no wish to maintais 
any argument on the subject ; only it is Ma opi<* 
nion, that by the service of a second indiet* 
ment he has abandoned and virtually pa»ed 
ft-om and extinguished the first. 

Lord Advocate. — ^After the statement wfadcli 
has been giveii by Mr. Dmmmond, I do not 
mean to detain you by entering into a qoe^ 
tion, which I understand to be shut hytiie 
uniform practice of your lordships. Bat I 
think it necessary to advert to one point hi 
ttf r. Cranstoun's speech. He stated, that^ finr 
some time past, the cotin^ i(k Ihe panel bad 
ihought it incumbent on them to attend, not 
only to this indictment, but also to Ihe last, in 
which informations n^re ordered on the rke- 
vancy. He ought to have stated-^-and aa I 
know his ftdmess, I think it mast have boett 
byaimssioil ttiat he did iiauta te «** aurt alN 



* 



ivn 



Jbr Mmiii t h0Uig udm^ OaOu. 



A, n, 1«(% 



\m» 



ita» & nondl befiie tlv paid iNte Mrred ^mdi 
i^iA indietamty notioe was givoi to his ooantel 
\ff liiwtf, tiitt it was BOt intended MrpiDMeate 
lk« fittC iddietfliaat, but to sarfe mib with 
aaMhetf. I tfaink it fleoettary, i« vindieatioi^ 
«f tlM pablio ptoaecntor^ to aiatn this to your 
lonl si ups> u it ahawa there was no hitei^aD 
in o p pms th9 panel, av to give hiacouiael 
«nf naediaw tronhla^ 

Ob the point iisal^ I sfHe la yon, lini net 
onlf since 181S hit this point bean nndemot>d 
toh^ahtit, but in «U the caaea before, this was 
Aanniftmnpnotiae. lathecaaaof Mendhaniy 
there waa » iMig avfoaaent whether tiie^iaBaing 
af- notes in Eof^and oould be ataled in this 
Govt, on the gionnd of the crfme in the one 
oot mti ji being a ootttbstiation of the orime 
< BuiBi itted in the dtiiCT. After the panel 
niairifri upon that« i«lbtttationa taese drdefed^ 
It was dien thought the better tiode of pao-* 
cneding to abandon that iadiettnent^ ana to 
give n new one, whidi was detia while ialbf^ 
naadena weita in depend^nee; and in that 
cnaei where it ia hnown to jtxM loxdidnp that 
9iwtf attempt was made to safe the individnal 
Aen at tho bar, this point was tmdecstood to 
be shut. 

• The Mittt jnst comes to this, that, where 
Ae pnbOe proaecntor has ndsed an indicCment, 
it is competent fo him, antecedent to pleading 
Mbre a Jnty, to abandon the indictment and 
las^ a second. It appears to me that the 
dicnmstanoe of a pleading on the relevancy 
httittg tdcen phboe, cannot prerent the public 
pt^asecoior frmn abandoning the indictment 
vriien be thinks fit, and bringing a new indict* 
inent. liddng both the principle and invalria- 
Me pthdtice into Tiew, there cannot be a donbt 
111 the caaoi In sappcH of what was stated 
hj^ Mr* DtttniflAond, the oise of colonel 
Chhtteris is in p6iht. If It bad not been held 
Aaft Ae kM ifldictmtot waa a Viiaaa^pahaing 
fiom the Ibrmer oaesy all of them wontd ha^e 
a p p eaared tm th^ recMk Bat he^e it oAly on# 
tipon tlie r^rdi tlierfefbre the service of th# 
aecoiid wai a virtnal abandemnent cf the first. 
Upon thefee gkmnds, I hat^e no doabt of the 
«eBipetency cf the proceeding in this aaae^ 

Mr. Gferit— If the objection stated by Mr. 
GraAat^uh has any solidity ih it, I am sure no 
^aod anawer has been givett-to it on the other 
sid^ of the bar, and indeed no answer at all. 
Ihe tewned gentlemen were pleased to talk 
of a pfMtiee since lbl3, of which they have 
shown yoor lordships no te06rd ; aind one of 
fSueub talks of a case brought into Court a 
nanber nf yeata ago, in whidi^ he sliyBi a fiMt 
iadictmettt waa abandoned, and a tcoond 
aefved oA the panel, upon wlikft sec(yhd In^ 
dicttncBt the trial proceeded. As t6 Ae-ch^ 
camstatwpes of tfiai case, we have Ih^ aofbority 
of m learned firiend, which li, Kvo d<MiM, 
feonaiderable; but it is not an authority upoti 
which, in duty to my client, I am bound to 
^kfi And to What dothesfeicaset amount after 
^ak Jasl to ttit^ Ihtt the pabfH tUkMred hiai^ 



selfio bh Med npoit a 
out makiag any obyectioik to it« It is very 
eaay to aooaiiDi for all dMoe caaes. H vat^ 
freqiaentfy happem^, that it woald not avail 
a panel to have his triat pat off— 4ia ia prapaaad 
to meet it, and his oomtsd beina laadhr, ha 
Would not wish to pot off the tnal, or ineur 
any farther delay. 

We, who are ooanael in this ease, consaHed 
topether whether it waa worth while to ataia 
thia ohjectton, aa it trauld menty lead to 
dah^. Dating eae period of the coaaaltalieiB 
I waa of cpiBion, that it waa not worth whila 
to sute the c«f^ection, being all tha whOa 
aatiafi^ it waa a good sAiieoitQn. What I hara 
said is aaffidaat to aaeoaat far all tfaa'casaa 
which have been cited, even auppeaing they 
wane ataled accatately. In geneial, I may 
observe this, that it eHea happena ia eaaca 
tfemips^befoiatfars Coatt^ that tha gtntiemen 
who attend for the panel tea better aanmiated 
with civil, than with crimiaal trials. Sudi an 
objection as wa now. maintain would very 
possibly not have occurred to m«. But it 
stands on the ground of authority and of 
principle, and it tbast ba considered well 
fbunded. Upon what is it founded f JWaf, 
It is positively laid down bvMr. Hume, who 
mentions his authorities, ana he himself is & 
great authority, that the prosecutor, pubUo or 
private, cannot abandon his indictment after 
the relevancy is pleaded to. He has no right 
to give it up. He has no more right than any 
other litigant has to give up any case without 
the leave of the Court I apprehend yoa 
cannot reasonably have any doaot as to uiia 
point, that no ^iroaecutor • can of his own au- 
thority desert the diet, or abandon the libel, or 
prevent the Court from discutting that libel. 
The matter must be judged of by the Court. 
This is expressly laid down by Mr. Hume, 
and I am surprised my learned friend should 
use his own authority against Mr. Hume's au- 
thority, without offering any argument upoa 
the sulriect. '^ It is also a Case which some- 
times happens,'' says Mr. Hume,*^ ^that 
though still resolved on bringing the panel to 
Justice, the prosecntor sees eaase^ however, 
not \^ insist on the trial of him on that parti*'^^ 
cular libels Because, peihaps, he has diseo- 
vered some fiaw in it, or the executions thdrao^ 
or on account of new and mateiial' evidence 
which has lately eome to his knowledge, and 
which requires an addition t<^ his list of wit- 
nesses, or may occasion a difference in the 
laying of his charge. In situation« of thia 
soFt, which, notwitlMtanding all due petns en 
the prosecutor's pai^ must sometiaafts> happen. 
It is necessary to- the advancement of JuMiee 
that he have thefiower ^ofdesertinghia present 
Ubel, Withoat f>i«|ttdlee to his right oC insisting 
anew at the time, and la the form which k« 
shall find advisaUa* if, indeed> he had the 
absohrte and uncdnttfolled privilege of throw- 
ing up his process aa often, and Ibr what 



«M«*MMMfri|«i|**M»'^«l— i*^hM 



* »«l>i^<i<*#<Mi 



% S-Tr* :|» Gr.l8» 



aifi] 57 0BO«3£ Ifl. 

iMUi9efl.«o«f tt h% 'plwsedy tiii» wooid be d«ii- 
gerous to the panel, who might thus, uider 
nlio or afieeted prelenoesy be berawcd with 
lepeeted libels. Our . iciutom does not, there- 
m% trust the prosecaCor to that extent, but 
atfows him onlj to more the Court to desert 
the 4iet jptm hco. et tmfurt; in which request 
they may refose to gratify him, if they see 
cause to beUeve that he intends any thing 
•pfureiaiTe or inqiroper, or if they are not 
satisfied that there are good reasons lor such 
an indulgence. It is true the style has .crept 
iBle practice, of. the pmsecutor deserting the 
4iet, because it so often happens that his mo* 
lion for such a purpose is suocessf uL But in 
truth this is a loose and inaocucMe expression: 
Ibr the act of desertiop is not lus act, but that 
^ the Court, without whose permission and 
4eliferance the process cannot be withdrawn 
in this, tempoiaiy form.'' There is a great 
4eal moreto the same eflfoct. 

Lord GUSm, — Mr. Drummond says this is 
not a desertion of the diet, but an abandon- 
ment of the indictment. 

Mr. €Mk.— It is clear that the whole of tins 
passage applies to the case now before the 
Court. . I shall put this case to your lordships. 
Suppose that a libel is served on a panel with 
St list of .witnesses annexed, that the panel 
ob|edts to the relevancy, that the Court takes 
the libel into constdeiatioo, and that, in the 
courM of the aigument, the prosecutor disco- 
Ten he could strengthen his ceie by throwing 
lup' that libel. Sumrase that he therefore 
brings a new libel with a nfw list of witnesses : 
May not the panel reasonably object, I have 
disclosed my witnesses in pleading to the foi^ 
mer libel, and therdbre it is improper that the 
prosecutor should have power to throw up the 
former and bring a new libel accusing me for 
Cha same crime? 

What Mr. Hume says is, that the Court 
may allow the prosecutor to throw up, or de- 
sert his libel, but that he cannot dp so without 
leave of the Court. Were the prosecutor to 
be allowed of himself to desert his indictment 
^d bring a new one, he might make such im 
attack -on the prisoner, as the prisoner might 
.find diiBcttlty to perry. That would be a 
.hardship on the prisoner, and one produced 
partly by the discussion on the first indict- 
jnent. And if the first indictment were to 
-bediscussed, and the panel to be tried on it, 
the case mif^t be such, or the verjr evidence 
such, as to entitle him to an absolvitor. That 
is an important consideration. The authori|ies 
.are clear with me. The proeeoator of himedf 
•hes no right to throw up his lib^ after it has 
been pleaded to. ^The act of desertion it 
not htt act, but that of the Court, without, 
wlupse permission and deliverance the process 
cannot oe withdrawn in this temporary form.'' 
. A private prosecutor must give caution to 
.insist in his VAifX ** Indeed if he be a private 
prosecutor, the Court have already caution 
trom him U> insif t on tba^ libel| and to this 



TM^WiUUm S4g§f 



\a» 



they may h^ him and. lefae. to. oife m^ 
letters if they see cause. According^, , in the 
debate in the case of Aichibald, the proeeoutor 
innkly disown* all pretensions to any saidi 
arbitrary power. His migesty's solicitor ^ 
presents, — that he observes, in the informatioB 
on the part of the panel, very alarming coitse- 

Snenoes are eadeavouied to be.grafled on the 
octrine pled in behalf of the prooecator ia 
this case, as if it gave to tkie public piosecutor 
a very sirbitrary power of Mpressittg the sub- 
jects in this country, by aesertiiig diets as 
often as his (aney eu ggest e d . But as all tihe 
alanning consequences pointed outare founded 
upon the supposition of a doctrine vduch. he 
never meant to plead, he thinks it now proper 
to have this matter clearly understood^ as the 

Sublic pROsecutor never pleaded, nor doee be 
esire it to .be b^eved by the sul^ects in this 
countij, that he has any arbitmry power, of 
deserting diets without the au^rity and in^ 
tervention of the Court; wh^ circumstavpe 
tota^y removes all those apprehensions yrhkfk 
the counsel for the panel has grafted npoq the 
supposition that anarbatrair power of deserW 
ing diets was claimed in thi^ or in way otbee 
case bv the public prosecutor.'' 

Beaily, my lord, after reading that Mssage^ 
and the whole of the passages in M^ Humei 
I submit that it is quite idle to maintaiu that 
the public prosecutor has it in his power in idl 
cases to desert his libel, and throw up his pn^ 
cess. He mav do so before the panel bsa 
pleaded ; but the moment the panel has joined 
issue with him, thfen the pleasure of the Court 
must be taken as to a new trial. 

The assertion if manifestlv groundless tbae 
the. public prosecutor may abudpn an indipt^ 
ment after it has been pleaded to, and briiOg a 
new indictment Before such pleading lie 
may execute a new indictment, which is undof- 
stood as an abandonment of the dd. But it 
is contrary to principle and authority to sim- 
pose, that, after a panel has pleeded, the 
prosecutor may throw up his UM, and haTe 
lecourse to a new indictment. He slay be 
compelled to discuss the libel to which die 
panel has pleaded. If it be thrown out upon 
the relevancy, the prosecutor may bring for- 
ward a new indictment. But suppose (hat it 
is not thrown out upon the relevancy, that the 
case comes tp. trial, and that the pen^ obti^ 
an aktoMbor upon that trial, the prosecutor 
caunot bring a new trial for the onence there 
chaiged. Therefore, I say thai the public 
prosecutor has up njgai^ without the au$liorihr 
of the Court, to abandon this indictment; aiia 
although he has taken upon himself to execute 
a new indictment, he cannot abandon .the old 
indictment vrithout the authority of tl^ Court. 
If this proposition is true, the public pro- 
secutor must do something more, or you n^ist 
do something more for him,, before he is enti- 
tled to proceed on the indictment before your 
lordships. 

As to the case of colonel Charteris, we are 
Ipld ip answer, |bat for some tiniB pMl it l|ee 



snl 



Jw MmkuHeriKg unttimflit'Oatht, 



A. a mr.' 



Xft3S 



be^a tile' pnbetite -tbr the public pfosecator to 
wSbmoAim a fint iodktBicnt, without tadcin| any 
notice of it to the Coitrt at all, but metetj by 
execalini^ a new iadictiiient. The panel ma^ 
BO doabt be tried on this new indictment, if 
he is 'more elrftid of the old than the new one. 
But whenever the point of objection is stated, 
JOG nnist go back to the principles and jndg- 
lAentii of yoor loidAips in parallel cases ; and 
upon these it is dear, that till the pdblic pro^ 
aecvtw gets thr first indictment oat of hk 
w^y, which he has not yet done, he cannot 
pvoceed on the second. 

If he ihodd move to desert the diet n'syfi 
cKer on the fint libel, which he may do, liie 
«pieslion will be. Whether he is entitled to go 
ion dis pkn» with the second ? We have tieen. 
4ni^ pBvinr the way for this last question, 
which is the troe snliject for yonr consider- 
srtion* Tne cpiestion oomes to be. Whether 
the public firbsecntor, npon now giving np the 
ftnt libel, is entitled to proceed on the se- 
^i^bnd r We' sabmh that he is not. For it ap- 
pears from' the case of Charteris, that the 
Conft' wbnld not allow the public prosecotor 
fb bave in dependence several Ubeb at the 
snie time.' lliey forced him to abandon 
tbrte of his libels altogether, and then colonel 
Chltfleris went to trial on the fourth. Sup- 
posing it' had been dismissed upon the rele- 
Wncy, and that the public prosecutor had 
ifsen allowed to depart from tiiat'libel by the 
Court, hie might have brought a new indict- 
liieiiti But I ask this, upon wlndi the whoTe 
point now depends; Would it have been 
eompetent for the public prosecutor, after 
Ittvl&g been fbreed by the Codrt to withdra.w 
^bee of the libels, before diie panel was 
obliged to plead to the fourth, to have on the 
Mne day. ettc ii te d these other three libels, 
and foned the panel to ao on and plead to 
thiemt This winild have been considered so 
giest an evasion of the justice done by the 
Cduft just befons, that H would not have been 
«ndared« No public prosecutor could have 
«et Us fooe to that Yet, ^bere is the differ- 
ence betwcien diat proceeding' and the pro- 
ceeding in the preseht iutande^ 'Fhe first 
libd here is in dependence, and a new one 
iMtt been executed upon the same grounds, 
dMNigh not in the same form. The' posecutdr 
eneentes a ne# indictment before tne old one 
Ins been disposed of. Is there any difference 
between this case and the case of colonel 
Charteris, as it wotdd have existed, if the pub- 
lic prasecotor, after abandoiung three indict- 
ments, had proceeded in the manner vrhich I 
liave just supposed ? 

Your loidsMps have been t^d, that there is 
lio intention to do any injustice to my client. 
'Idojwt say Aete is. I say they havie gone 
witmg in point of form— in point of power — 
diSsy have no' right to' proceed as they are 
dbmg. Tbouffh die puoKc prosecutor now 
n^ not be disposed to do injustice, his suc- 
msor may; and we mi^t as well set afloat 
the vrhole forms of the Court at once, upon 



sa^nf that the pubtie prosedlitor intends no 
injustice. 

It vras said, that the counsel for the panel 
had notice that a new indictment ina t6 be 
execnted, and that the former indictment was ' 
to be abandoned'. I am one of the- paneFs 
counsel, and I did not ^et notice of this. But 
vrhat signifies the notiee? It is binding on 
nobody-^it is not binding on the prosecutor, 
or on the panel. Sodi a thing could not bn 
done wfthcmt the Court. Tt was very well in 
my lord advocate to have such polite inteitf- 
tions toward the' panel; but it ift not fbr hk 
lordship to determine this matter. It is the 
Court, vriiich are to do or "not do what' he 
wishes, according to their opinien of Ihtt merits 
of the case. 

This land of specialty pleaded by the pro^ 
secntor signified nothing. l>own to the present 
hour, my client and his counsel have been 
forced to the consideration of bodi indicf- 
ments; and no Uttle consideration has been 
pven to both — and that is the hardship winch 
It is the object of the law to prevent. Upon 
the whole, therefore, I hope that I am not 
obliged to answer this indictment before the 
fint shall be disposed of— and then I am enti- 
tled to the benefit of ftill tadiiekr, after the 
first libel shall' be abandoned. I akn not 
bound to answer to this indictment vrithout 
any warning. If the prosecutor had no right 
to execute that indictment, it must be consi- 
dered as not executed at aU. Fifteta dayi^ 
at all events, must be allowed after the fin*- 
indictment shall be legally abandoniid. 

Mr. j€§r^. — ^There are only two pointSi— . 

lardJdnocaU. — I olject to more thin two 
counsel for the panel in reply. 

Lord Earmamd, — As many of tht pvMi's 
counsel as please may speak. 

Irsrd Ado&oaU.'^KB many of them as vrirfied 
might have spoken before the Crown vriaa 
called upon to tfnsvrer, but they cannot now 
all be allowed to speak. It is also' irregtilar 
for ft juirior counsel to speak after a steieit 
counsel. 

Hr. Jf^ri^.^What have you to do With 
that? 

Lord fiiBrmand.-*In justice to myself, I must 
here offer an explanation. One of the oldest 
cases I remember is the trial of ProvOSst tdooi- 
gomerie in 1759. Half a docen counsel theie 
spoke wrMm. I have myself been in cases 
in which this was done, having spdcen in the 
middle of four or five counsel ; but it vras at 
the beginning, in answer to a plea to the lel^ 
vancy, and not in r^ly. 

LordJuttice Cfer^— I am of opinion vKth ford 
Bermand. Here the' vrhole eight counsel f6r 
the panel oiiffht hilve spoken in succession im- 
mediately aner Mr. Cranstoun ; but I* know 
no instance of two replies having been ad* 
ntiitted for a panel. 

My lords^ you hlive beard thia argument 



SSB] ^7 GBOBGe MI. 

what are your opinions on toe subject. 

Lord JStrmmd, — Jn eve 17 eaie I abouM bfe 
4esirou0 of gfttUng anjr infi^rmatimi to enable 
w^ io sitftaiii ^li^ctioiis in ikvom of a pet- 
•oaer.' But my opinion k, that the objection 
,in tbe prelent case moat be Kepelled^ bectnae 
.the piiaoner baa no inteveat to. ptead the ob- 
jftofcion. 

At tlie aame ttme^ I am dispoeed to do all 

rMte to the argnment of Mr. Granatoon. 
«tated» ihaK the panel had pleaded not 
<giii>l|r tp the fimiier todietment-r^thait Inibrmar 
'tioQS bad been ordarad upon objections which 
mv» atHted lo the nleynney-T-lfaftt a new 
indictment had been served while the fonner 
indictaent had i»ot bean deaerted-^-and that 
itbe f<ffinor indictment oannot be deserted 
^vithout the authoritT of the Court. He 
.atatfldy that fifteen days farther of Mhcmb 
,iiii|^tba of material adtaaftaga to the panel; 
Mid he figured ttroog cases of hardship which 
.4ha Court would h»re to check ; for iottaace, 
.4bere might be a series of indictmentfy upon 
#Qfna one of which the king's adrocsata aught 
Uk9 it ipto his h«ad to transfer suddenly tine 
4rial to Iiiv^meM or Aberdeen. ' I hope no 
imch thing will erer happen; bat should it 
liappen, the Court has power to redress the 
gnevance. 

In ooosideiing jtfie oljsection which has bean 
ibronght forvard^I wish to know vriiat interest 
the panel has to. plead it. I could figure a 
case whsie the panel might have a strong i»- 
terest to plead sucH an objection; and then I 
might think dlfierently from what I do on the 
fires^iit occMtton. 

The case would have been altogether diHev- 
fnty if a different crime had beendi^rged in 
the second indictment from what was diaiged 
in the first, or if the crime had been differenUy 
gtis^ nr if fqqiethipg had been added by the 
,|N>bUc piosecator. Qat here the indictments 
#fe tha 4fMna. Something is left, out in the 
second, which aj^ared to me .objecti<^;iable 
in toe fif)|t^tbe nfivative, that the paoal 
hating ''at Glasgow,'' &c. ^'wickedlr, mali- 
cipusl^ri and ^mtprooiily conspired and agreed 
with ouer evil disposed persons, to break and 
disturb the public peace, to change, subvert, 
and overthrow the government, and to excite, 
move, and nd^ insurrection and reb^Hon, 
and especially to hold and attend secret meet- 
ings, n>r the purpose of obtaining annual 
parliaments and universal suffrage by yt^Iawftil 
"means, did," 8ec. But are the pane's counsel 
much the worse in their cogitations on the 
second trial, from this passaee being struck 
out of the indictment ? There is no increase 
jia ^ second indictB}ient; a^d^ with tlie dimi- 
nution wUcoI h^ve now mentioned) the twp 
ic^ictnieata ai;e ip the same t9rm<«. The 
pai^, itHerefore, i^aa nq M^r««t to plead the 
.(^e^jtioa apon t¥<^ M appears to rely. 

It is true that the 'pros^Utar, .in lavr, or in 
¥^ «C *»W>;i«B»ot^4>f biP^s^^ 4^«.the 



tridt/WiOkmU^ 



tMi 



4iat fiat did tha judgas aTor #1^ 4t iatp 
their minds <o ask tba prosecutor, upo»as^ 
ocoasioQ, why he deiwca 4^ diet to be da- 
sarted 7 We preanme he has. gaod ;resaana 
for doing 80» im we never fudc him to state 
those jreaaone. The power of paaping liroai «r 
desartii^ an iadiiitqient^ is sabstant»a4y in hb 
m^eat/s adaocate or hni depaties< 

J think the counsel for the panel woald hava 
done belter to have withheld their otteetion* 
Qps this paoal pleaded to the present indid- 
maot? J believe not; for his counsel pjna- 
vented him. The fir^t indictment had aat 
gona ta a jaiy^ aad never will. jBefna ait 
iadictment go to a jury, it has l>aaa Vy pata* 
tice in the power of the pB0faca(cir ai wf 
time to p»sa firam itbylvn^ginga.aaooadA»- 
dictment; and it ware ;univise to pat -a lash 
hand to a|i^ vanatian in the procadaraiiaaii- 
minal iriM** Many in^tanoes mig^ be cited 
of a ^TRt indicti^ant having b^n virMiaUf 
passed ftom by a sacoad aamagy and taanr 
casei ^ ithat efiact .were 'ditad by one of ihis 
learaad g^tlemaui withont going fni^^er bnek 
than^ail}. Thasa^yisasai^ifMailiar^ojiaj^)' 
I wap pre9?qt at sei^eral of 4ha tiials« Tha 
lord advocate want further baqk, apd he slatait 
the o(#a of IVUndham. I taka the tme Tiaar 
of ^e law to ;be .j^hi4*^at iba aemn^ <{f n 
new indictment israaabsAaAtlal dereUctMpof 
a fpraMt indiatmant. An a|i|>UcaftiQn to <he 
Coi^?t an tfia iml^apt is a mare master of lam. 
No good aaa arise iipm snsiaiiaagtheolQe^ 
tion in this case; and M<^ not tUidt tfentin 
law and praatiea it can )>a anatainad. 

Lord 6M/im,— I aia notaava. that i eaa ar- 
rive at the same condition yri^h mgf bsoihar 
who has now spolfLon^ 

I think it fiur to state in ihe outlet, thm 
actual hardship is a plan whi<;^ cannot te 
stated in the present inat^ce. I do nqjt^hiidE 
that the panel can complain of hardship ; 
na snob plaa» I belW^a* i^ aaaously ii 
on, as thai of actual bardiMiip- IV 
of trtte pcisonar's oonnsal is aa oUaotion. in 
point of ibias, foondad ^i^pon prineipi^ and all 
mims whidi ragnlate anamal proeednra are 
of importance* 

The case of Charteris was tha first nfenad 
to; and what do I gather from thai aaaa.? 
There were fonr indictmaats ; and thapiisaaar 
was brought to the bar under the charge ooa- 
tained in all these four indictments^ having 
pleaded at that time to none :0f tbem. Bis 
counsel excepted to thiSi and I thiidc widi 
reason; and, in consec|uenca of whatpaaaed, 
the prosecutor was obliged to abandon tbran 
of iba indictBMuts, and the trial pmeeaded 
npon tba fourth. I undemtood Idr.Clai^.'^la 
ftay> that the trial djfd not pvoeefed mstaM»; 
in which I think be is. mata&aik I think thsl 
aD that lais done in that oaHi waa tofiad ilr 
piasecutor aouH not praoeed on siky (ipe in- 
4ictma^t without expressly abandoniag.alMa 
rest; and I understand the ^al proeaadafi 

ia^^iaAeiy. , TMs judgraeat, whethat r^ 



Jmr'AiminitierMg miikfmfiU Oaiht. 



ttSSl 

er wronif In ibe Mte of Chaiterit, and tlK>6gh 
mvdk fomded on, seems to have been depart- 
ed Irmb in the subsequent practice of the 
Coorii it senm lo have become an establisb- 
«d praetiee^ reooBcileaUe with prindjple, thai 
« IMiblie . pvostecmor vaj raise indictments 
■gainsc a prisoner in soecetoion for any peiiod, 
«>m1 Msy bring fainiy when he chooses, touiai, 
•nd that the ptisoner has now no gnumd for 
ol^ectioo as in the case of Charteiis. I iM>ld 
eOy for this reason, that it is now an established 
fifinciple^ ^diat in eriminal prosecutions, a 
public praaecutor^ by raising a fresh indict- 
sncBi against a prisoner, so ^m> passes from all 
teaser indictments. Suppose, therefore, that 
dbe uaiMtttnate man at me bar had not plead* 
«d to the old indictment, I should have consi- 
dered the new indictment a nrtual abandon*- 
ment of the former one. I conceive that the 
practice which has followed the case of 
CSiarteBS, b reconciieable to pnnciple,-and for 
this reason, thai till a prisoner pleads to an in- 
dictment, the public prosecutor has the dis- 
posal of the indictment and be may brin^ it or 
aot befine the Court — be may abandon it vir- 
tual^, or expressly,' without the consent of the 
Ceeort. 

IJiai is what the practice goes to. But what 
is the case here ? The difference between this 
and cdbnel Charteris's case is, that here the 
priscmer did plead to the indictment, ^d what 
Was the consequence of bu doing so ? — that 
the indictment wa^ no longer within the power 
of the public prosecutor — ^he no longer could 
desert the diet — that is all within the exclusive 
power of the Court. If I am Asked whether, 
when Utiscontettation has taken place, and the 
pleading of the prisoner to the Indictment 
may finrly Ito considered as an act of litiscon- 
testation,, the public prosecutor is entitled, of 
bis otm anthority, to desert the diet or aban- 
don the charge r I answer in the negative. 
He cannot do it without the interposition of 
the autfaori^ of this Court. 

* Tbet question is decisive to a certain degree 
.on the pment point. If he cannot abandon 
it ezpiessly, be cannot do it virtually-r^he 
cannot do it by implication — he cannot do it 
Without the authority of the Court. It is laid 
down bjT ^^' HumSir-i^iid I conceive it to be 
a moe^ important principle in our proceeding 
— tfbt after a panel has pleaded to an indict- 
ment^ |be. authority of the Court must be had 
for the abandonment of that indictment. I do 
not talk of tinis as a case of hardship ; but I 
eoneeiTe hiiidilups might arise from the exer- 
cise, by % public prosecutor, of such a right 
as Ue maies^s advocate now contends for. 

The pmUc proeecntor has many ptivilege». 
Masf ^ jbilqrr end reasonnblj, aiul wisely, 
end Ibr tb^ most proper puiposcs, given to 
Ui^ isiicb an noLaihmed to a private prose*- 
tetoe; AtiiiliieeBtfstalien goes through all 
CM&. Afitar it^ neither party <^ go out of 
fSeoil widsni the euthoritv of -the Court. 
'Hesae ifiostsalce tbe nghsi, the aitaation, and 
fwiWaanmit eC the piwttc preiecttler, 1^ 

you xxxm. 



A. D. 1817. 



[*«(» 



ferring to the situation of the private prose- 
cutor in similar cases* i can easily conceive 
cases to exists thcjogh I have no apprehensions 
of their existing, in which it might oe the duty 
of your lordships, in point of justice and law, 
and on important eonsiderations of every 
description, to aay that you would not allow 
the public prosecutor to abandon an indict 
ment and take up a new one. 

I apply this principle to the present ease. 
The panel has pleaded not guilty to the first 
indictment, and a new one ham been raised. 
I do not say the new one is null — ^I am not 
prepared to go that length. But this, much I 
say, that this does not extinguish the old .one 
-Ahat it is not a virtual diK^aige of it, ber 
cause the public prosecutor cannot expresily 
disdiarge or desert the first of himself. I 
conceive that the first stiU subsists«4t has not 
been dischaiged by any atuthority competent 
to disdbarge it. tt still subsists; ana here 
the prisoner has a fresh indictment served 
against him. What is to be done with the 
present indictment ? It is. not null— but whal 
the prisoner says is, I must have full tadud^ 
granted me; and the whole questiou is, 
whether the full tnduour shall be granted him, 
YesorNo? 

I think that, in point of form, you are bound 
to dispose of the first indictment, and then the 
question is, whether you will allow the panel 
the fifteen days, Yes or No ? 

It was said that the prisoner has no interest 
to plead the objection. I cannot go into that. 
This is a question of life and death, and he is 
the best jodge of his own interest. I am not 
lentitled to tell him that he has no interest not 
•to be tried to-day. For any thing I know, he 
has a great interest — a material interest, by 
which his life may be preserved or prolonged' 
To have his life proloaged even for fifleen or 
sbcteto days, is perhaps a serious object to 
him, as avoiding nim possibly a better chance 
to save it from ue. present danger* 

If tbe practice lounded on by tbe Crown 
counsel were of long standing, inveterate, and 
feconcileable to principle, I should hold it 
sufficient to authorise the proceeding which i# 
olijeeted to in thk case. But as to the prac- 
tice cited here, where an indiotment has been 
pleaded to by the prisoner, I have seen ne 
eases stated prior to .1813. The ease of 
SomervHle in I8ia, and that of Horn in 1814, 
iwere mentioned. The case of Mendham I 
hafve no distinct recollection of. I take it for 
Uraated it.was coneetly stated. These three 
cases are all we have been told of, which truly 
epl^y to the present case. I cannot pay such 
jegard to these cases, as to be of opinion that 
they entitle me to overrule the objection ^ 
.Jlirs^ Becauie they are too recent in date, and 
too few in nnmben for regulating our decision: 
Saoondfy^ I thibk.they ought not to be M;tended 
to, for thisTeaton^ - taacanse I da not -see that 
the ol^)ection was stated; and vi!e all know 
Imw apt the best men are to fall into errors 
and shght irtegulaiities when not put cm their 





4271 



57 G£ORG£ III. 



gtiard by the bar. Wewert told^ that it is 
%e duty of the Coart to watch over the pto> 
ceedingSy and see that they are regular and 
consonant to established forms, whether any 
thing be stated from the bar or not. In that 
obsmation I agree; and I am sure that I 
sneak the sentiments of the Court when I sav, 
that we are sensible of the anxious and able 
care displayed by your lordship on all occft- 
sions of that kind. But it is impossible for 
any man to attend- to every thing, I say, 
therefore, I pay. much the less regard to these 
cases, because they were not argued by the 
bar. They are cases in which the objection 
was not urged. If the objection had been 
stated the Court would have given greater 
consideration to the point. I nave a third 
reason, viz. that I cannot reconcile these deci- 
sions to strict principle. I think that after a 
panel has pleaded to an indictment, the public 
prosecutor cannot pass from that indictment 
without the authority of the Court; and that 
he cannot virtually abandon a first indictment 
after such pleading, merely by serving a second 
indictment upon the prisoner. 

I therefore think this objection is well found- 
ed, to the effect that it is our duty to insist that 
the lord advocate shall proceed on the former 
indictment, or shall now move the Court to de« 
sert it. Whether any consequences may follow 
from delay, I am not aware. The panel asks 
fifteen days longer; and, if he is right in point 
of form, I cannot refuse his demand, on the 
ground that he has no interest in what he asks. 

Lord PUmUfy — This is a point attended 
with some difficulty ; and it would be singular 
indeied, if,^ after attending to the learned plead- 
ings at the bar, and y^nai we have heara from 
the bench, I could say I fek it unattended 
with difficulty. My impression however is, 
that the objection is not well founded. In 
questions of this description, the practice is 
the safest guide to go oy. It here appean 
strong. I do not speak particularly ot the 
case of Mendham ; but the cases of Somer- 
ville and Horn are distinctly in point«— are 
identical to the point before us. 

It is true that these are late cases, and that 
na others have been mentioned. But let it 
be remembered, that this objectioo cmbcs 
upon us unprepared. Neither vbur lordships 
nor counsel have had time to look to prece- 
dents ; and I diink it would be ri|^t to have a 
search made into former cases, to see whether 
these are the only cases which are the same 
with the present. 

It ie certainly true that these eases were not 
argued before your lordships ; but the Court 
is bound to attend, and always does attend to 
the relevancy of proceedings of this kind, and 
particuiariy when it is important to the de- 
fence of a panel at the bar. The Court will 
in all such cases attend to the regularity of 
procedure ; and in the case of Somerville this 
point Was suted to the Court— it wae aot 
argued, but it vras not overiooked. 



Trial of fFiOiam Edgar [328 

I do not see that any hardship could ariw 
from holding that the serving of a new indict- 
ment is a virtual abuidonment of the old. 
It was upon that principle that the case of 
Somerville was decided ; and if I did not uxf 
derstand that to be the principle in the case of 
Somerville, I should be of a oifierent opinion 
as to the present case. I see no hardship to 
the panel, nor any want of principle in the 
rule. It is upon these grounds, though with 
difficulty and hesitation, that I think the ob* 
jection cannot be sustained. At the same 
time, it may appear to be of importance, and 
I have no objection to have the poini more 
fully considered, and a search maae for pra^ 
cedents, because I am satisfied that when the 
matter is investigated, it will be found that 
the Court has proceeded upon these grounds 
in other cases. 

Lord Re$ton, — The first inquiry is, whether 
this (question has been settled or not by prior 
practice? If it is not so settled, I agree in 
the opinion which Lord Gillies expressed. 

If I understand the quotations that were 
read from Mr. Hume, it is not in the power of 
the public prosecutor, without the autnoritT of 
the Court, to pass from an indictment to'whic& 
a panel has pleaded ; and the panel may in* 
sist that the case should now go on upon the 
first indictment. The panel riiould not Be 
exposed to the hardship) of not knowing upon 
which indictment his trial is to proceed. It is 
in the power of the Court to pass from the 
first indictment or not, upon the motion of the 
lord advocate; and the panel should not be 
uncertain, upon coming into Court, upon 
which of the two indictments he is to be tried. 
It would be a hardship to put him in that 
situation. 

It was said that the indictments are ibm 
same, or the one only a part of the other. 
That certainly does appear to be the case; 
but when they come to be minutely sifted^ 
other circumstances may be discovered, of 
which the panel may avail himself. 

I think ne ought to have fifteen days mdudm 
on the second indictment, after the authority 
of the Court is given to the abandonment of the 
first indictment. 

As to the practice which has been cited. 
Lord Gillies stated very good reasons wi^ we 
should not be bound by it. It is only or firar 
years standing, and the objection was not 
stated' in any of the cases which were cited. 
The oractice cannot therefore be binding on 
the Court I am for sustaining the objeCtioii, 
or allowing a search for precedents. The 
practice is periiaps of Icmger staindfiag. 



Lord Jmtiee Cferle.— I certainly have ne 
difficulty in etating.to your lordahipB, ^lal^ 
notwithstanding the veiy able manner in wUd^ 
this argument has been urged on the part of 
the prisoner, and notwithstanding my deib - 
Anee for the opinions of my brothen on tnj 
left hand, I am not pfepoasd ^orcoaeur in ih« 
oliectiQUwIiifikhis.WflD hreoght forward in 



3SQJ 



Jitr AimvKutmng unla»gfiil Oaiht. 



A. D. 1817. 



[39» 



thk cast ; ^nd if driven to the neeeisity of 
ming a decided opinion at present, I. most 
differ from these learned lords, and find that 
. the objection ought not to be sustained. Not- 
withstanding the weight of these opinions, you 
have the practice established in point of fact 
— for, from the deliberate averment of the 
Counsel for the Crown, you must assume that 
there is a series of cases in which yon have 
acted on a principle directly opposite to that 
which is now contended for by the Counsel for 
the prisoner. I apprehend that it is also a 
weighty consideration in this question, that in 
one of the cases which has been cited, as to 
the procedure in cases like the present, the 
prisoner was visited by most exemplary pu- 
nishment. I allude particularly to the case of 
Lindsay Cranford, who was sentenced to trans- 
|M>rtation for fourteen vears. Somerville too 
was unfortunate indeed, if there was a valid 
objection which might have been stated 
against his trial, as the sentence upon him 
was imprisonment, aeoampaaied witn an ex- 
lubition on the piUory. These are precedents 
which have net been hitherto doubted by the 
Court; and yet our attention is now called 
to this ({uestion, and we are desired to austain 
the obfection of the panel's counsel. I hold 
it to be mj sacred duty, sitting here as a Judge 
in a question as to aform of procedure, before 
I pat my rash haAd to alter what has been 
the practice, to be convinced by argument, 
reason, and authority, beyond doubt, that that 
practice so uniformly adopted, and followed 
by SQcb consequences, is oontrarv to law. If 
I did not so act, I should consider myself as 
in foet accessory to a fundamental subversion 
4^" oor criminal procedure. 

But although my opinion is different from 
that of my learned brothers, I am disposed to 
ge into the proposition made by Lord Pitmilly 
of inquiring into the fact, Whether or not 
these recent eases are bottomed upon an 
-Meat piactiee; which, if established, would 
go greatly to do away, or would much diminish 
&e Impression of the opposite opinions which 
tere been delivered. 

I -dunk it no more dun justice to the lord 
advocate to say of the statement of his lord- 
ship, that he had no other view than to bring 
beme the Court the practice prior to that 
staled 1^ Mr. Dnimmond. The case of 
Meodham occurred in 1804, not so recent as 
the practice ^uded to in 1812. Mr. Burnet, 
where speaking of forgery, page 190, says, 
^ The question again occurred m the trial of the 
same person (Mendham) in October 1804, for 
ottering and vending' forged notes. The Court 
esdared informatioBS on the point, hut the 
^[Kosecotor aftervrardspaned/rim the charge, and 
teoB^t llendham to trial on a different indict- 
ment in December following, for forging and 
uttering Bank of England notes, with an 
Intent to defiand the Bsuok of EngbLnd." Your 
lordships see, that Mr. Burnet, vrho was 
fintoiltar with the forms of the Court, and 
was indottrioos to make himself acquainted 



with every thing relating to the criminal law 
and procedure, states, in the very language 
which is objected to in this case, that the pro- 
secutor afterwards .passed ftom the charge. 
This is another case to-be added to that traia 
of precedents which have been cited. 

This then being the case ; there being evi- 
dence before you of a practice since 1804, 
and in one of the cases, the attention of the 
Court having been particularly directed to the 
point in question, — a circumstance which I 
now positively remember, — the question is. 
Whether the panel is now entitled to state to 
your lordships, that there is such a formidable 
objection to this practice, in point of principle^ 
that you ought to lay it aside, and establish a 
new practice in this Court. That is the ex- 
tent of the argument pressed upon you. Cases 
formerly were not so fully reported as they 
now are ; but you are bound to hold, that in 
those in which the practice now objected to 
was followed, it had the consideration of the 
Court. If the practice had .appeared to the 
Judges to be objectionable, they would have 
interfered, .though no objections were stated 
by the panel's counsel. 

I cannot agree vrith my learned brothers as 
to the possibilitjr of hardship arising io a party 
from toe practice which has been followed 
in this case. I do not .think that the 

Sublic prosecutor, in virtually passing from a 
rst indictment by serviog a second, leaves 
the panel m dubio upon which indictment he is 
to be tried. If it could be made out to my sa- 
tisfaction that such was the case, I should in- 
deed see something like hardship. But the 
moment it is held to be clear law, that even 
after the debate on the relevancy of an indict* 
ment, and after informations ordered on tlie 
subject of the objections stated, the public 
prosecutor, by serving a second indictment^ 
passes from the first, no injury can ^possibly 
arise to a panel ; he cannot be ignorant upon 
which of the indictments he is to he tned. 
The Counsel must know .the law; and when 
eonsiilted by him, they can inform him, that 
though five indictments have been served 
against him, it is only the last to which he has 
occasion to direct his attention. It is the duty 
of counsel for an accused, in reference to 
what I hold to be the clear rule of practice, to 
give the panel this information, and then ncf 
panel can be held in doubt as to the indict- 
ment upon which his jtrial is to proceed. It 
is upon a settled conviction that.no prejudice 
can arise to a panel tn such a situation that I 
think the objection is not well-founded. 

Indictments, where there has been no plead- 
ing, are every day passed from, with or with- 
out any reason appearing on the face of the 
indictment. I say, the same principle applies 
to a case like the present. The cases are the 
same as to the safety of the prisoner. There 
cannot remain in his mind a shadow of doubt 
as to the indictment upon which his trial is to 
proceed ; the rule of practice is a sufficient 
guide for him. 



3di] 



57 GEORGE III. 



Trial of ]Vilimm Btlgar 



[OSS 



Upon th«M yroQlidt, I my 9 I ikovld be for 
lepelUiig the objettioD ; but I oonenr in tba 
piropoBiliOD wbieb bum boon vomA% to yom: loid^ 
ships, that in a point of pactioe, which is of 
nnfifiite consequence to the aocased--4he lew 
of the country-^-and the guidance of faturity-^ 
and where it is stated that a recent practice 
only had crept in which was unknown in 
former cases, an inquiry should be made to 
ascertain clearly how the matter stands. 

A small indulgence in point of time may be 
granted. The parties may be allowed to give 
in short Miovtes of the state of the practice, 
to be delivered on or before Saturday next ; 
and the case may be resumed tlus day 
se'enoight. 

Lord Advocate. — ^There is another trial, that 
of Douglas,* fixed for Monday. I never have 
felt au^ desire to press a prisoner in point of 
time, if any object whatever w%8 stated to me 
for his wishing delay. If the panel's counsel 
wish for time, I can have no objection to grant 
il them. On the present occasion, I only think 
it necessary that I should be permitted to 
state upon your lordships* record, vrhat I now 
state vtvd voce, that I aid understand that by 
the service of ihe second indictment there was 
a virtual abandonment of the first. 

I have no objection to this point being settled, 
even previous to Monday. The Minutes 
should be ordered to be given in immediately, 
that there may be no delay in bringing on the 
trial afterwards, as we may be told, perhaps, 
that no indttcut had been running upon a se- 
cond indictment. I do not wish to press the 
business ; but a short day should be assigned 
for the inquiry proposed, which may be com- 
{»leted without delay. 

Mr. Clerk, — It is impossible to search a re- 
cord which has no index, in two days. 

Lotd ChUiet, — There may be a debate upon 
the relevancy; and, by possibility, what the 
lorjl-edvooate tayt may tslte place. 

Lord Advocate. — ^I passed from the first in- 
dictment by executing the second, and the ti»- 
ducUe on the second began to run from that 
time. I owe too much to the law and the 
decisions of your lordships, not to oppose 
the objection which has been brought fi)rward 
to day. 

LordJuttiee Clerk, — ^Therais to be no argu- 
ment in the minutes. They are to be seen imd 
interchanged. 

c 

Lord Advocate, — ^With regard to the terms of 
your interlocutor, a diet cannot be continued 

rto an indictment which has been passed from, 
passed from the first indictment, and a ma- 
jority of the Court agree that the first does not 
now subsist. 

Lord Ot/lMt.F*The authority of the Court 
roust be obtained to the passing from that in^ 
dictment. 



. Iprd Jmtim CMk.--Wt ke^ evaij thing 
entire. 

Lord Advocate. — ^The question for your con- 
sideration has not arisen under the first, but 
uDder the second indictment. Your lordshipi 
called the second indictment ; you called tb^ 
panel to plead to it ; and in bar of his doing 
so, a motion was made that the trial should not 
take place upon that indictment ; and the ques- 
tion IS, whether the trial can proceed ou it or 
not ? Therefore you cannot proceed on anj 
other, or continue any other than the second 
indictment. A majority of your lordships are 
of opinion that the first indictment was, yir^ 
tiially passed from, and I called the diet of no 
other indictment than the second. 



■V*. 



• VideFott. 



i%efoUowkig wmutei of the debate were them 
entered ttpon fAe record. 

CraneUMB, for the paa^ objatiedg — 
That il was incompetent to serve od«^ libel 
against « panel, while another^ upon whid^ 
he hfkd siready joined issue by ple^tding^ 
was still current against him ; That the 
first libel, having been pleaded to in fiic^ 
of the Court, was no longer eub po t e tta t e 
of the public prosecutor, and could notb* 
deserted, or otherwise disposed of, hot bv 
iudgment of the Court : That tlus Ube^ 
being still in fiDrce against the panel, mm 
the only one against which he could nofw 
be called to defend himself; and that iit 
vras not till after it had been disposed of 
by sentence of their lordships^ thai there 
was room lor the semoe of a second* 
against which tbe panel was entitled to hav^ 
the full mdMcim of fifteen days to prepare 
for his defence. 

Home DniBUBond, for his mijesty'aad- 
vocaike, aatwered^ — That the proceeding 
4ipon this oocasion ia sanctioned bv the 
established practice of the Court; and thai 
the very same oourae has been invariablf 
followed in every caae wh^o the same 
drcumstanoes have occurred. So, for ex- 
ample» in the case of Lindsay Cranford, 
indicted to stand trial on the 9th Jannaiy 
1812, when the diet being continued tifl 
3rd February, new criminal letters were 
in the meahtime raised, the diet whereof 
fell on the same day, and the trial pro- 
ceeded. Thomas Somerville was indicted 
to stand trial on the 25th Janoary 1818. 
He pleaded not guilty ; and after a debate 
on tne relevancy of the libel, informatioii^ 
were ordered to be lodged on the 15th 
. Febniaiy ; but new criminal letten were 
raised, the diet whereof fell on die aaaie 
day, ttid the trial proceeded* A question 
was asked in this case by one of the jodgee» 
if it would not be proper to desert the diet 
of the first libel r but it waft amwerfO^ 
tha^ a desertioa might be aigued to affect 
the second also; and thai the former wa* 
held to be abandooed 1^ the aenrioe of m 



883] 



Jot AHAkimhkg ««te|^ Oa<b. 



A. D. mi 



(B8« 



bere to the pndSoe ; avid the case pro- 
ceeded. In tlie caset of Joha Hom» JoDe 
13th and July 6.tb 1814, and of Joha Bell, 
who pleaded giiilty on the first oaUing of 
the diet, January 9th and Fieibraary 3id 
and loth, 1817, similar proceedings look 

eace; aa also in the preyious case of 
endham in 1804. 

2do, His majesty's adrocate possesses 
an uncontrolled power orer his iKAanct in 
all stages of a criminal process. He is not 
bound^as a private prosecutpr is, by statute, 
to insist at the appointed diet, but may at 
all times abandon or pass from any indict- 
ment he has raised, or any part thereof; 
and he does so in daily practice, according 
to his pleasure* And if he exercise this 
power at any time before an assize is set 
to try the case, he is still at liberty to 
insist of new against the panel in another 
indictment for the same offence. 

3tio, The remedy for the possible abuses 
that may follow from this power, is to be 
found, not in attempting to compel the 
prosecutor to maintain an instancy whidi 
ne has dropped, orer whldi the Court have 
BO control, and for which the panel has no 
interest to^ insist, as he is out of Court by 
the abandonment of the charge but in 
opposing its oppresxiTe renewal or con- 
tinuation, when the Court may, on suf- 
ficient cause being shewn, desert the diet 

4to, No objection is ot can be made to 
the numberless examples of an instance 
dropped where the panel has never pleaded 
to the charge. Now this case is in nowise 
different in principle ; for the parties can 
ui no sense be said to have '^ joined issue" 
befoiia an assise is set ; no «plea or state- 
ment of tacts beine i&nal Inal is enteied 
More the judges of the fact are named ; 
nor can a panel have a jim quantum in his 
own plea. The doctrine of jmmng time 
or Uiucontettaiionf has no existence in this 
court, being foanded in a presumed ju- 
dicial contract between the parties; a 
thing inconsistent with the first principles 
of criminal law. 

Lastly. — Service of a second libel has, 
in the recent practice of the Court, been 
held to imply the virtual abandonment of 
the first ; and, consequently, there is no 
ground for the complaint of two indict- 
ments subsisting at once against the panel, 
and of his ancertainty to which he may be 
called upon to answer. Accordingly, his 
najeaty's advocate dedares, that hebAs 
abandoned the first libel ; and he has no 
objectioQ to aath^nticate this statement on 
the leeoid in ^y form the Court may thmk 
fit; and this he appieiiends 18 aU the panel 
Ims any ri^t to requite. 

As to the taAiCtif of fifteen days, tiiere 
is nothing In the aoi of paiHameat to pre- 
mitlht service of a second libiel 



the OEisleBoa of « 16m» oner; aaS it is 
contrary Co no prindple, and sanctioned 
liy the inveterate pnK»^ of the Court. 



The Lord Justice dei^ and Lords' com* 
missioners of Justiciary having oonsfdered 
the foregoing objection, wifli the answer 
thereto, and heard parties' procuraton 
tliereupon at neat length, before afiswer, 
ordain parties^ procurators to pi^pare and 
give in minutes, stating the practice re- 
^tiv^ to the said olpectipn; to see and 
interchange these minutes ; and to print 
and lodge the same in tiie hands of tiie 
clerk of court between and Saturday next, 
in order to be recorded. Continue the 
diet against the panel, and whole other 
diets m court, tiU Monday next, at tea 
o'clock forenoon, in this place : And or- 
dain parties^ witness^, assizers, and sJI 
concerned, then to attend, each under the 
pains of law; and the panel in the 
meantime to be carried back to the Castle 
of j^inburgh. 

(Signed) D, Botlk, J. P. D. 



BUNl/TES or Search ov tbb Books ov 
AnjouBKAL, From lif January 1777. 

Alexander Penrose Citming, £s<|uire, 
against John Lawson. Perjury, 1785. 

The dietwas deserted pfo/aoo«/ tombre on 
1st Februaiy 1785, the panel not Tuiving 
pleaded. After the interiocator deserting 
the diet, ^ Mr. Erskine then represented 
that new criminal letters had been raisea 
and executed, at the instance of Mr* 
Cuming of Altyre, against the said John 
Lawson, the diet thereof stood ooatinued 
to thiA day,'' The Court continued the 
diet upon these last criminal letters to the 
14th of February; on which day the 
panel pleaded not guilty, and informations 
were ordered. He was afterwaids'' tried, 
and found not guilty. 

John Burns and Alrxanbrr Bailur 
VRitcH. Atumli, 17B0» * 

The diet was called on 21st I>ecember 
1789, when Veitch was outlawed; and 
the diet continued against Bums to 18th 
January 1790, before he had pleaded to 
the charge. In the mean time, Veiteh 
applied to the Court tobe reponed against 
the sentence of fugitatioh. 

On i6ih December 1789, Burns and 
Veitch were served with a new indictment 
for' trial on the said 18th of January. 
Upon that day the Court ad^oatned to the 
25th ; from which it was a^ouned to the 
26th, and iirom -the 26th .to the let 
February. The trial proceeded on 1st 
February, when the pnels<«rere tried and 
convicted. . ' I , 



S36] 



57 GEORGB IIL 



^WHUam Edgar 



[336 



BEftBYi RoBBKXSONy Alld CaLLAWDBB,^ 

Se^aUm^ 1793. 

Upon 28tk JanuBiy, diet was called ; 
Callander was outlawed; and the diet 
was continued against the other prisoners 
(who had not pleaded tO' the indictment), 
till 11th Febmaiy, when the instance was 
allowed to fsXX, 

On 18th February they were tried and 
connoted on an indictment which had 
been served previous to the said 11th of 
February. 

Alexavdeb ScoTT.f SedUian. 1794. 

Upon 20th January the diet was called 
and deserted pro loco et tempore; but, 
upon the ISth, anew indictment had been 
served against the prisoner, chargiAg him 
to compear upon 3a February. 

On 3d February the diet of the second 
indictment was called, and Scott was 
fuiitated. 

RrpHABO Mbvoham, Forgety. 1804. 

Ricjianl Mendham was cited to com- 
pear on 10th October 1804, when he 
pleaded not guilty. 

Informations ordered to be given in on 
or before 30th October : diet continued 
to 1st November ; further continuation to 
13th November, when whole diets of 
court continued to 14th; on which day, 
instance aRainst Mendham dropt. 

New indictment served on 3rd Novem- 
ber, charging him to appear the 19th 
November. On that day, a continuation 
to 26th November; then continued to 
lZ9th, and from Uiatto 3rd December; 
long pleading on the relevancy ; and, after 
debate, his majesty's advocate passed 
from the libel, so far as laid on the com- 
mon law; and diet continued till next day. 

4th December, continued till 7th De- 
cember; continued till next day. 8th, 
further continued till 10th ; on which 
day, interlocutor on relevancy; not rele- 
vant ; dismissed from the bar. 

Alexanoeb Campbell. T^eft and 
Robbery. 1809. 

After pleading not guiltr, the lord ad- 
Tocs(te representod, that, for the present, 
he passed from the third charge in the in- 
dictment, viz. the theft committed at the 
inn at Dunfermline ; but reserving to the 
public prosecutor to proceed against the 
panel on that charge in a new indictment, 
if he shall deem it proper so to do ; and 
therefore restricts tne indictment to the 
two charges of robbery. 

John Likdsay Cbaufobd and James 
Bbaoley. Forgery ofwritmgt, January 
8, 1812. 

Diet continued on motion of panels 

• rt<fe.2.How.Mod.St.Tr.79. ' 

i Vide 2 How. Utod. St. Tr. 383. 



tiH ad February ; did not plead ; in the 
mean time, sen^ with a new libel to 
stand trial on the - 3rd of February. Trial 
proceeded accordingly. 

Napieb and Grotto: Murder and 
BMery, March 31, 1812. 

- After pleading to the indictment, the 
prosecutor passes from the charge of 
murder, and all the charges of robbery, 
except the robbery alleged to have been 
committed on Peter Bruce and J. Buchan 
Brodie.* 

The Court find the indictment, as 
limited by the foregoing minute, relevant 
to infer toe pains of law. 

Thomas Sommbbville. Petjury. 
January 25, 1813. 

Pleaded not guilty. Debate on rele- 
vancy; and informations ordered to be 
fiven in; and diet condnued till 15.th 
February. In the mean time, a new in- 
dictment served on the panel, calling him 
to stand trial on said 15th February. 
IVial proceeded accordingly ; and Som- 
merville convicted. Imprisoned, fined, 
and put on the pillory. 

John Hobn. SelUng Forged Notes. 
June 13, 1813. 

Pleaded not guilty. Informations order- 
ed, and diet continued till 12th July, Iq 
the mean time new libel raised, and served 
for trial on 6th July ; when panel again 
pleaded not guilty, and the order fpr in- 
formations renewed ; on advising which, 
libel was found relevant, on 15tb July, 
when panel pleaded guilty, and was 
sentenced to transportation. 

Bell and Do vo las. Uttering Forged 
Notee, January 9, 1817. 

Diet against Douglas desertedpro loco ei 
tanpore. Bell pleaded guilty. The Court 
ordered informations on the relevancy of 
the indictment, and continued the diet 
against the panel John Bell, till 3Td Fe* 
bruary. In the mean time, a new libel 
served for 10th February, when trial pro- 
ceeded, and Bell pleaded guilty again, 
and had sentence of transportation, the 
libel being restricted.f 



* Many cases of abandoning or passing from 
a part of the charge might be produced ; but 
it must be admitted to be a common practice, 
as, for example, in cases of child-murder, 
where the charge at common law is frequently 
passed fh>tn, upon confession of the statutory 
offence. H. H. D. . 

t Nble.— -There are in this period various 
examples of diets deserted, on the motion of 
|he prosecutor, pro loco et tempore f after plead* 
in([ to the char^ and af^r interlocutor ^f re- 
levancy, which it IS thought unnecessary to 
produce, as the coinpetency of that proceeding 
18 settled law. H. H« D. 



2371 



Jht AdmimiUnttg. unkmfid Oaihit 



ADDITIONAL MINUTES or csh«| 

TAIN Cases bisyovd the. Psbiod op 
Sbarck. 

IsoBEL NicoLsoK. Fire Raiting. 
June 25, 1711. 

Indicted and accased, &c. 

Hbe Lord Justice Clerk and commis- 
sionen of justiciary^ at desire and with 
consent of her majesty's adTocate, desert 
the diet of the first indictment raised at 
the instance of her majesty's advocate 
against the said Isobel NicoJson, panel; 
but prqndioe to him to insist in his other 
indictment already raised and execute 
against the peael) as accords. 

Patrick Haxiltoh of Green. Murder. 
July 30, 1714. 

Mr. Dnncan Forbes, his majesty's ad- 
Yooate, consents to the deserting of the 
diet against PatiidL Hamilton, younger, 
of Green, upon*, this libel, without pre- 
judice to him to insist in the new inaict- 
ment raised at the instance of his ma- 
jesty's advocate against him. (SieSub.) 

Dun. Forbes. 

Tbe Lord Justice Clerk and commis- 
stoners of justiciary, in respect of the 
above consent, desert the diet against the 
above Patrick Hamilton, younger, of 
Green, upon this indictment, wiUiout 
prejudice to the pursuer to insist upon 
the new indictment, as accords. 

(Signed) Ad; Cockbubk, J. P. D. 

This after informations given in and 
recorded, and several adjournments of 
tlie diets. 

AvDRsw Feknie, and Others. Indicted 
for Sedition, Debate ; and Infbrma* 
tions ordered. May 24. 1720. 

July 28. — ^Mr. Walter Stewart, his ma- 
jestv's solicitor and advocate^epule, for 
his highness' interest, judicially consents 
to the deserting of the diet against the with* 
in named and designed iUidrew'Femie, 
ice. wit)iont prejudice to his majesty's 
advocate of insisting a^nst such against 
lAom new libels are raised, as aocoras. 

The Lord Justice Clerk and commis- 
nonerj of justiciary, in respect of the 
sJMve consent, desert the diet agaidst the 
said Andrew Femie and others, above- 
named, wi^out prejudice to his majesty's 
advocate of insisting against such of them 
against ivhom new libels are raised, as 
aooordsl 

(Signed) An. Cocxbvbv, J. P. D* 

.' » » 

The second libd beiny called, 
JiiilrM Andrew Fenve, kc. Indicted 
«ldaecnsed,-fcc. Debate; and informaf> 
tions ordered. The informations , after- 
waidB|ivenin, found relevant, and trial 
ptooeeos. 



A. D. 1817; 1ji39 

JiJins IiiGLia^ ladwelter in Leitii. In* 
dieted and, accused as ^Ity of 
Thefts B4Mery, aid Friecm-irmJMig, 
4«. August 24, 1720. 

m 

Diet continued till 26th September, and 
afterwards to 17th October. On which 
day, 



hdirm James Inglis. Indicted and 
cused, id in dkprecedefUL 

Mr. Robert Dundas, lus majeat/s ad- 
vocate, for his highness' interest, jnakially 
consents'to the deserting of the diet of 
the within indictment against James 
Inglis, panel, without pr^iMlice of insist- 
ing in the new indictment^ as aecpfds. 
(Signed) Ro. DuwnAS. 

• 

The lords commissioners of justiciary, 
in respect of the abo?e consent, desert 
the diet upon this libel against the said 
Jfumes Inglis, without prejudice of in- 
sisting on the new libd, as accords. 



Inlran James Inglis,* panel. 
Indicted and accused on the new in* 
dictment. Informations ordered* 



MM. 



MoNCBiBFF Stated* That in oompUanesr 
with the order of the Court, a search had 
been made in the Books of Adjournal for 
precedents applicable to the question now 
before the Court. That a search from 
the year 1777 downwards, had tot been 
made, and the result had been communi- 
c^ed to the panel's counsel some, daya 
ago; but that alter this a forther search 
had, it seems, been made,iwhich' appear* 
to go back to the beginning of the last 
centttty : and the statement of thecases 
so found was only communicated late on 
this day. (May 23.) 

That on the part of the panel i^ may 
now be assumed, that the (Jburt l^ts b^ 
fore it every one example which his ma- 
jesty's advocate has been able to discover, 
in the course of more than a eentwy, of 
any proceeding which he thinks- cafcu- 
lated to. suTOort th^ measure which has 
been adopted in this case, or to meiet tha 
objection foundect on th^ deari^t princi- 
ples of law. 

That on the resiilt of this seanh the 
following remaiks are humbly sijibmit- 
ted: — 

Ittf That there }b not oiU :e3^mple in 

.the whole practice of the Court, in vrhich 

. the same 0Djectipi\ which is h^re insisted 

on was stated to the Cour^ and rspeUid 

. hy a judgment ' 

24 That the lord, advocate haa pointed 

the. statement with recard to .tiiose caaei 
on which it is pr^uined he means 19 rely; 
ai}d that, as- for as the panel's couni^ cuk 
discover, the only cases in the long period 
which hate the smallcet tendency to shew 
any pmctioe la f aT^ni of the proeeonin^ 



0893 ^ GfiORGB UL 

• et ii}AditnxLrtfAtm^^ htting such 
a tendent^y are hoo cases m 1714 and 
VMf onei^ase in 1804, two hi 1813, and 
0n0ial817. Beiweentlieyear 1790, and 
the jtar 1804, tbe pilisecator 4ias not 
beeii aUe to find cfie single case in the 
vecoid,.in wUcn, after a panel had plead- 
ed to an indictment, a libel Was served 
tuftd susbuned without a prewhm desertion 
of the diet on Ihe-flrst indietoent. ^ 

8r«^ TlAl to sliew this, lie iAiooldshortly 
taka notice of eacli of the oaies pHnted 
• by iM majisty^i adrocate* 

On the first seaicb, the folkMriog state- 
ment is sabmitted :-« 

Mm Jjmmm^ 1785.~]|i this case the 
pancA'had not fUaded, 

Burm and Veitck, 1789.— Paneb had 
mot pleaded. 

&ry^ RoberUon^ and CaUaukr,^ 1793. 
—Panels bad not nhadtd, 

Akxanda-^Scoif.firU^TvieXhfdnoi 
plfadffl, 

Rkkatd Jfendkam, 1804.— Tn Uiis case 
lie panel bad pleaded nbt ffuilty. Infor- 
mafiotts wereordisred; and several con* 
tinuations of the diet took place, the last 
^ the t4th, November. On that day, it 
IS said, the instance vras dropped: And 
in the mean time a new indictment had 
l>een.n^ed on the 3rd November. This, 
. IhmfiMPe. IS one case, in which, after a 
parly bad pleaded, a new indictment was 
simred before the diet oh die otiier had 
bten dtertUd ^ the aiitfioiity of the 
Court, 'and 'witiiout anT Jradi desertion. 
Biit.the-CbQrt win 1)e pleased M observe, 
X|iat In that cale the pftnerdetiiy bad no , 
ititef^t to make tlie objeolkfn, but quite 
'iBe reverse. For the iMotid iliditftment 
was eqtulty in^evaint with the first ; and 
foooidingly the^ Court, after full dbbate, 
onleM iuorm^tions; attd after various 
•4jdomnient8,the libel wasybiaii ntfT rek- 
0«il, and the iMihel was diaNtfMBd,/$ipm ^ 
bar. Vost ciearlt, therefore, it w4s not 
bis jn^rftt to make any e/bjection to the 
^irvite of the iec6nd indittmeht. 

Alexander Cannbeli, 18Q9.^this is not 

a cte kpptitebie to the. poiM sk ail. 

' 'There was no qaeMMmslbottt any new itt- 

,dictmep|; and the ciroittMtailce ^f tiie 

jWbHcpi bs aiie u for fiairingfrote particular 

diaigir IB tfd indidlfiie&t^ Jntelidinff or 

. leservinff the power afterwards %o Aose a 

isew iilditetmeiifti ts whoify' tmMteiial to 

.ihe^^fl|^. Bututaayir^yltis^fauii^ 

lAy apprehended, thkt . even lUs takes 

■ k^a^ orily with (ho c^ieiit of the Court, 

whicl^ is expressed By the forms, of the; 

Mttifedifororibevattcy. ^^ 

; 1w if ^e of Ae eaM wliicli WliA Quoted 
/Ui tfe ieb4fe. But the patieb Md not 



rriai'tfUmmSt^ 



tfi40 



■•*• 



^ !f H6W. If od. St TV. 7^. 
t'Sa9W.Mid.St.1V; 



pUtded; and therefore it is altogether in- 
applicable. 

Jfapkr md GroUo, 1813.— This case is 
of the same nature with that of Alexan- 
der Campbell. There was no second in- 
dictment, and no question about a second 
indictment 

Ilomos SomenUU, 1813.— This case is 
so far applicable, that the panel had 
pleaded to the first indictment ; that the 
second indictment was servad without 
any previous desertion of the first'; and 
^at the panel was tried and convicted. 
But even with regard to this case, it is to 
be observed, that ikie crime of which the 
panel was accused was that of peijory^ 
the |>unishment of which could not ex- 
ceed imprisonment and piUory ; and that 
the panel was at a very serious expence 
ill defending himself at every diet of the 
Court. It was therefore obviously better 
for him that the trid should go on, what- 
Irver night be the events than that it 
fhould bi flierely out off for fifteeu days. 
Accordingly, the objection was not staled 
by his counsel, and oouid not l^e jodged 
of by the Court 

/o^ Euii^ 1813.— This person was in- 
dicted for uttering and selling forged 
n^es; the first of which is a camtal 
offence* He pleaded not guilty, and in- 
formations were ordered. Then a new 
indictment was served without a^y deser- 
tion; and a pleading on the relevancy 
apaih took J^ace. But the Ccort will ob- 
serve whar followed. When the new 
indictment was ftmnd f<elevaiii,^Patt^ 
fkmkd gifUtyT* to the secoMl dnm, and 
was sentenced to trantportaiiim. lA such 
uoase^ though the panel had an interasi 
to ob^i to the relevancy of the charge 
itself in both indictments, it is evident 
that it would have been very mudi against 
his Interest to b^^t to the powers exer. 
dsfd' by bis majesQr's advocate, or to tha 
regularity of his proceedings. 

Bell emi BaufiUy 1817.— Noihiag can 
be drawn ftom this case. Bell fietded 
malty h bath Macfinsitfs; and as to 
I>oiis^ the diet was dettrted. It is 
submitted, that ithas no analogy to tha 
present questipii* 

These are all ' the cases. selected \ij his 
majesty's advocate, frd&i (he first uote of 
{earch, fr^m 1.777 downwards. And it 
IS 'obvious, that none of ^hein bave any 
unalogv to the case, except those of ilfmtf- 
hqa^aomeivilkf and^ Bim^ and, even at 
"to uiese^ the explanations appearing on 
the ho^ of them are quite su%ient to 
' aeeduni for ^(ke o^edion hot heh^ ttateds 
whieh, ifter, all,-is the utmost thft can be 
'drkwuditeifthenK ' 

The additional obtes mentioir fitar 



liQtel Nieokmi, 1711^Ptttel ifi this 
c^e had notpkmkdn 



d4lJ 



J^ AdmhAdmng unlawful Oaths, 



A. D. 1817. 



[242 



Pafndb BamltoH, 1714.— Hie fact it 
not diattnctly stated, nor does it at all 
appear what beetme of tbe caie. Tbouffh. 
the minute and interiocutor fpeak of the 
^ new mdictment raised/* this may, in 
truth, refer meniy to the notice of the 
lord advocate of an intention to raise a 
new indictment immediately thereafter. 
Withoat seeing the dates, it is impossible 
to draw an J correct inference. Besides, 
though it is mentioned in a note that in- 
formaiions had been given in, it does not 
follow that the panel had pieaded. The 
iafcTOiations might be on the form of 
citation, or on other points not necessarily 
implying that there nad been a plea to the 
inoictment. 

In one view, however, this case is, with 
many others, a fiOal precedent against the 
doctrine maintained oy his majesty's ad- 
vocate. For it will be observed, that Mr, 
Demean Torbet never thought of maintain- 
log, that, after pleading, the service of a 
new indictment ipio facto put an end to 
tfie ftrs^ or that it conld be abandoned 
otherwise than by an express interlocutor 
of the Court. . 

Jbaktm Femk and others, 1720. — This 
ease is nearly on a footing with the pre* 
ceding. It does nol appear when the new ^ 
indictments were raised. But it does dis- 
tinctly appear that his majesty's solicitor 
and adTocale<depute of that time did not 
inu^ne, that he had any power to abandon 
the first indictment otherwise than by a 
motion to the Court; and an express ii^ 
terlocotor was accordingly pronounced. 

Jama IfigUs, 1720.*-ranel had not 
piaaded. 

This is an analysis of the whole cases 
founded on by his majesty's advoeate. 
And the Court will now see, that there 
' are none bearing even the appearance of 
analogy, etcept only, li^, Hamilton in 
1714; 2nd, Eecnie, kc in 1720, the- cir- 
cumstances of both of which are impeiv 
fectW known ; drd, Mendham in 1804, in 
whiSi boA indictments were found irre- 
levant; 4th, Somerville in 1818; and, 
5th, Horn in 1813^ who at lut pleaded 
guilty, and sot the libel rastrfcted to the 
charge vHudi only subjected him to an 
arMtrary punishment. 

That it would be for the Court to judge, 
whether there is any thing in theib caaes^ 
picked out of the pra^e of more than a 
etmary^ to oyertttsn the established prin- 
ciple of law^ which was explained .In iht 
debate, and is laid down bj the fiist 
authority on the subject, that after a psiael 
has pleaided^ the lord advocate h^ no 

Eto abandon tiie indictment, except 
toess motioii to the Court ; and that 
annot doit expnakf^ stilMesscftn 
' he doit mrtaal^, or bytsip^iarfm. '. 

>4My.That, annexed hereto, there is the 
whole, s^aisk of ibe recorda from the 1st 
VOL. XXXIU.* .. 



January 1 777, downwards ; and that ftom 
that Hst, the Court will perceive a much 
atronger practice, by which the lord ad- 
vocate finds it necessary to move the 
Court expresdy to desert the diet, inti- 
aoatiagai the same time, tliat he intends 
instantly to raise anottier indictment. 
And more particularlv, there are many 
cases in which this is done after the panel 
had pleaded. 

Cummkif against LessUe, 1785.— Deser- 
tion after interlocutor of relevancy, y 

WaUer Ro$s, 1786.— Had pleaded not 
guilty.' .Diet deserted fro loco et tempore. 

Brown and MNab, .1793. — Desertion 
after interlocutor of relevancy, expressly 
for the purpose of serving a new libel. 

Charki Sinclair,* 1794.— Diet deserted 
after relevancy found.' 

Qamn &tnpton, 1811.-7Diet deserted 
after interlocutor of relevancy. 

. These are cases in which the panel had 
pleaded. There are many others in which 
the recdrd bears a desertion pro loco et 
tempore, for the purpose of immediaUly 
serving a new libd. 

David Dalgleish, kc. 1780. 

John Grant, 1783. 

William Tenant, 1789. 

Thomas Wilson, 1790. 
' Jacob Tait, 1795. 

O'Neils, 1796. 

UrquharU, 1797. 

Kirby, 1799. 

Richard Mendham, 1800.—" Diet de- 
serted before pleading, as the advocate 
stated he meant to serve a new libel this 
qfternoonJ* 

Clark and Brown, 1802. 

Monro and M'Farlane, 1809. 

■ ■ 

That from this evidence of practice, to 
which may be added all the cases in the 
additional notes, it is humbly submitted, 
the inference is irresistible, that no such 
principle ever was recognised as that 
maintained by his majesty's advocate, that 
by executing a new indigtm^nt, a previous 
indictment to which the panel had pleaded 

J's ^pso facto extinguished. The law has 
leknowledged no such power in the lord 
advoeate^ and it is as little sanctioned by 
any. practice. On the contrary, the uni- 
Ibcm practice, with the exception of a 
few. straf^liog instances, all since the 
year 1904, and all but one since the year 
1812, is directly the i-everse, the lord 
yd^ocate having always thought it ne« 
i6cluary expre^ly to move the Court to 
idesert the diet. 

• That on the whole, it was humbly sub- 
taitted, that this search into the practice 
instead, of supporting the plea of his 
majesty's advocate, founded on a mere 
allegation of practice, in opposition to 

♦ 3 How. Mod . St. Tr. 777. 



243] 57 GEORGE III. 

the principle of law, tends very strongly 
to support the plea of the panel, and to 
shew trie incompetency of the proceeding 
here objected to: That if there were 
nothing more to be stated, it wonld be 
enough, that between the year 1720 and 
the year 1804, there is not one example of 
a second indictment raised after a panel 
had pleaded to the first, and before a de- 
sertion of the diet by aathoritjr of the 
Court. The case in 1804 has be«n ex- 
plained ; and it will be for the Court to 
judge, whether a practice, which -really 
rests on one, or at the utmost itoo cases in 
1813, can make law, in opposition to 
principles otherwise clearly esublished. 



Trial of WUUam Edgar 



L344 



COURT OF JUSTICIARY. 

May 26, 1817. 

FreKnt. 

Rt. Hon. DaM Boylty Lord Justice Cleik. 
Lord Hermand. 
lord GUlies. 
Lord PUmiUy. 
hord Re$ton. 

Cowuelforthe Crown. 

Rt. Hon. Alexander Maeonockie, Lord Advo- 
cate [afterwards a lord of Session and Justi- 
ciary, with the title of Lord Meadowbank.] 

James Wedderbum, Esq. Solicitol^eneral. 

H, Home Dnmmondy £sq. 

H, Warrender^ W. S. Agent. 

Coumelfor WiUiamEtigar. 

John Clerky Esq. 
Geo, Cramtotm, Esq. ' 
Thot. Thomtoni Esq. 
James Moncrieff", Esq. 
Francis Jeffrey, Esq. 
J. P. Grant, Esq. 
Henry Coekbum, Esq. 
J. A, Murray, Esq. 
G. W, Boyd, W, S. Agent. 

William Edgar was placed at the bar. 

Lord Justice Clerk. — ^Your lordships re* 
member die obieaion that was stated in this 
case. You ordered minutes to be giTen in fot 
the parties, stating the practice relative to the 
objection. These are now upon the table ; 
and you are to say how they are to be dis- 
posed of. 

[Here Mr. Cranstoun* was beard at , consi* 
derable length in support of the objections 
to the competency of the indictment.] 

Lord Gillies. — Before the prosecutor begins,. 
I want an explanation of a point. The case of 
Ilaniiltoh has been mentioned, in which Dun- 
can Forbes was prosecutor. That name must 

* No report of this speech has been pro- 
cured. 



excite in vs xiU peculiar attention. On page 
5, of the. joint minute of the parties, it is.stated 
by the public prosecutor, -^'Mr. Duncan 
Forbes, his majesty's advocate, consents 'to the 
deserting of the diet against Patrick Haaulton, 
younger, of Green, upon this libel'' (I under- 
stand informationa had been ordered, which 
raises a presumption that that libel had been 
pleaded to), ** without prejudice to him to 
insist in the new indictment raised at the in- 
stance of his majesty's advocate against him.*' 
What I want to know is, whether this new in- 
dictment raised was served i In looidng at 
the preceding case, ** but prejudice to him to 
insist in his other indictment already raised 
and executed,'' the insertion of ^ exeaUed/* in 
one case, and the omission of it in the other, 
excites suspicion that it was not executed in 
the other. It is mentioned in the one, and not 
in the other. 

Mr. Drummond. — My Lord Justice Clerk ; 
It appears to me, that there are two points for 
consideration in this case. The first is one of 
considerable importance, the other is of no im- 
portance at all as ofiecting the paneL The 
first to which I allude, is, whether it be com- 
petent, during the dependence of one indicts 
ment to serve another. The consequence 
would be that, if this be incompetent, the 
service of the last indictment in the present 
case would be a nullity ; and the panel would 
thus obtain a ftirther delay, to allow time for 
serving it over a^n. The other point ia, 
whether, after au indictment has been pleaded 
to (to use an expession which has been more 
dwelt upon in ttie present case than in all the 
former practice of the Court), it can be aban- 
doned by the prosecutor, without an act of the 
Court, or whether it can only be got rid of 
with the authority of your lordships, lliia 
second point is of no importance on this occa- 
sion, and is, in truth, a mere question of form ; 
for, whatever your finding should be, the retnlt 
will be the same to the panel at the bar. 

Hie first point, however, fortunatdy appears 
to be attended with no : difficulty ; for it is 
settled by constant and inveterate practice. 
I shall not detain the Court by repeating what 
is stated in tKe printed minutes, where your 
lordships have before you not. merely theftve 
cases to which only the learned gentheman has 
thought proper to allude, but a series of other 
cases of which nothing has been aaid. There 
are, besides, the cases from 1711 to 1T20, in 
the additional part ojf the minutes, which are 
completely in point upon this part of the sub- 
ject, proving tnat any given number of. indict 
ments may subsist against a pand at one and 
the same time. Even the case of -colonel 
Chayteris, of which so much has been sidd on 
the bther side of the bar, may be reforr^ to in 
support of this doctrine. As quoted ^by Mr. 
Hume, it establishes a c(nn|riete precedent, 
that it is competent to raise at oacci and con- 
sequently to execute, a number of libels against 
an individual accusing him either of the same, 
or of fifty different crimes. 



345] 



Jm AAmnitUring utilat^iil Oaths. 



A. D. 1817. 



[246 



The only tvUe of law as to the defence of a 
panel, in sndi circomstancea, to wbich onr 
practice seems to pa j any regaid, and it is 
snfiSeient for ereiynseiu] purpose, is this, that 
the proeecator must make bis choice, before 
flQing to trial, as to the indictment* upon which 
le is to proceed against the panel. Bat, in 
the present, of all cases, I do not know to 
what usefel pnrpose it can tend to enter into 
this discQSsion at all ; for if, as happens here, 
there is one and the same crime charged, and 
the same particnlars are mentioned, the de- 
fence also will be the same under the different 
libels. 

Besides, it will always be remembered, that, 
l>y the Tiew of the law which I maintain, the 
first indictment is already extinguished. For 
either the prosecutor does virtually abandon all 
prerious indictments, by executing a subse- 
quent one, or the Court will, as a matter of 
coarse, desert all diets but that in which he 
desires to appear. And here it is upon the 
record of the Court, that he has abandoned the 
first libd; and it remains for the learned 
gentleman to show by what proceeding it is 
possible to keep the prosecutor in Court longer 
thao he chooser to remain. What I state is 
the settled practice in a multitude • of cases, 
which are ot that description that they cannot 
appear in the books of adjournal, or form any 
entry on the record. When a panel forces on 
his trial by means of the act 1701, and the 
prosecutor does not bring on the trial on the 
first indictment, but new criminal letters are 
raised against the panel, these letters must be 
serred before the expiration of the first indict- 
ment, otherwise the panel could not be de- 
tained in prison. Now, in all the numerous 
eases of this descriptiou, it is plain that two 
libels are in existence against the panel at 
once, without the diet ever being called, or 
the panel even brought into the presence of 
the Court, and no objection has ever been 
made to such a proceeding.* 

* I was not aware at this time, that on one 
occasion it had been thought worth while to 
state an objection to this form of proceeding. 
The circumstance is detailed in the following 
note to Mr. Burnet's work, page 367 : '' But 
is it necessanr, in point of form, that the diet 
he called and simpUcUer deserted, as the act 
ordains, in order to entitle the prosecutor to 
the benefit of new erimmal letters r In practice 
it is not held sO ; and justly, for though not 
calling the diet be a virtual desertion of it by 
the prosecutor, the prisoner can sustain no 
pitjudice by this form not being gone through. 
It being still competent to recommit him on 
new criminal letters being served. Accord- 
ingly in the case of Welsh, who had run his 
letters, and on that ground petitioned for libe- 
ration on the lape of the first forty days, but 
who had by this time been served with new 
criminal letters. Lord Justice Clerk (Hope), 
' on advising his petition^ pronounced this inter- 
locutor: ^28th October 1806| having con- 



In the case of colonel Charteris, quoted by 
the learned geddeman who precedea roe, the 
discussion was not as to the running of the 
tmfticur, and the subsbtence of several indict- 
ments at once, as he seemed to suppose, for 
that was taken for granted to be lawful ; 
neither .was it imagined, that on having pro- 
ceeded to the trial of one indictmeat, all the 
others were not thereby extinguished. like 
question was, whether the panel should not be 
informed, before being called on for his de* 
fence, to which of several indictments he was 
to answer. There was no doubt as to the 
competency of raising and executing them all. 
No person ever entertained a doubt upon that 
subject. The demand made was, that before 
the trial the panel should be informed on 
which indictment the trial was to proceed ; it 
not being admitted, or so well understood as 
now, that the last service extinguishes a pre- 
vious libel. It is unnecessary to say more 
upon this first point; for it is settled by the 
established practice of die Court, that there • 
may be fifty indictments subsisting at one 
time, if, before the panel be made to answer 
or take his trial, they be all reduced to one. 

The next question is as to this doctrine of 
pleading to an indictment, about which the 
learned gentleman did not choose to speak by 
itself, but only in conjunction with the other 
point, and about which I should have been 
glad to have beard what he could say ; for I 
have not yet obtained the remotest glimpse of 
what the idea of ** joining issue,'' as applicable 
to the case before the Court can rest upon. 
The form of interrogating the panel, as to his 
guilt or innocence, before naming the jury, is 
one of the most immaterial, I might almost 
venture to say, useless steps of the whole pro* 
ces&. In England, a panel confessing may be 

sidered the foregoing petition, with the 
letters of ihtimation and execution herewith 
produced, in respect that new criminal letters 
have been raised and executed against the pe- 
titioner, and have been laid before hb lord- 
ship, along with the petition for his majesty's 
advocate, for a warrant to detain the petitioner 
in prison ; refoses the desire of this petition, 
in so far as it prays to set the petitioner at 
liberty ; reserving to the petitioner the benefit 
of any argument he may oe advised to found 
on against being subjected to a new trial, in 
consequence of the diet not having been de- 
serted timpUcUer on the 27th current, as he 
alleges it ought to have been, under the 
act 1701.' 

^* Accordingly wlien the trial came on, on 
21st November following, the prisoner founded 
tn/er alia upon the circumstance of the diet not 
having been deserted simpUciter when the diet 
of the former libel fell ; but the Court held 
there was no necessity for an interlocutor to 
that effect, the non-appearance of the prose- 
cutor being a vtrtual desertion of the diet, and 
entitling him to serve new criminal letteiS| in 
terms of th$ 5tatute."-^H. H. D. 



247] 



57 GEORGE Ul. 



Trial of U^illiam Edgar 



{fi48 



convicted and punished by the Court without i 
the intervention of a jury; and, if he remain 
silent, he may, in certain cases, I believe, be 
presumed guilty; and, in others, till very 
lately might have been punished by a barbarous 
sort 6f death.* Now, in all this, our praotiee 
is essentially different. The Court are no more 
judges of the fact, in a case of confession, than 
where the proof rests npon an^ other species 
of evidence ; and silence is, in all cases hor 
inanely interpreted into a plea of not guilty, 
the prosecutor being bound to prove his charge 
unless expressly admitted by the accused in 
presence of a sworn assize, 

I have looked through our law books, and, 
from the beginning to the end of all the au- 
thorities of the law of Scotland, there is not a 
word of the doctrine of litiscontestation to be 
found in criminal proceedings. There is no 
such word used Ij.''^ George M'Kenzie, nor 
by Mr. Hume. There is nothing in Dractice, 
or in principle^ to give it support, and the in- 
troduction of It is contrary to the first princi- 
Sles of our criminal law. Upon what does the 
octrine of litiscontestation rest? Upon an 
implied bargain or presumed judicial contract 
between 'the liti^nts. But, is that a doctrine 
which can be introduced here? Can a man 
make a lawful paction oonceming his life or 
his liberty? Litiscontestation has no sense or 
meaning in this place. I have not been able 
to find the word, even in a pleading, except in 
one case reported by M'Laurin ; and I wbb 
the doctrine for ever expelled from the de» 
liberations of this Court. 

No party has at present 9.ju$guaUum in any 
thing. To what could the panel here acquire 
a right? To his own plea? certainly not. 
Of what benefit could that be to him t If he 
plead guilty, it may to the prosecutor; if not 
guilty, is that of any use to himself? Is it to 
any act of the Court he has acquired a right? 
There is no act of Court in this instance.. If 
there had been an inteiiooutor of relevancy, I 
should at least have understood the aigument, 
but we have not yet advanced so far. This is 
the only ground on which I could conceive the 
•argument of the panel to have any semblance 
of reason. But, unfortunately for the panel, 
in the case I have alluded to in M*Laurin*s re- 
ports as being the only place in which mention 
IS made of litiscontestation, there was an in- 
terlocutor of relevancy, and yet no regard was 
paid to the argument by the Court. The case 
IS that of James Archibald, in February 1768. 
The petition in support of which the ide^ of 
litiscontestation among other arguments was 
there advanced, was, that the Court could not 
desert a diet, pro loco ei tempore idlber an inter- 
locutor of relevancy ; but the Court deserted 
the diet in terms of tlie prosecutor's motion, 
and granted vrarrant for recommitting the 
panel. 

I have to submit that the same consequence 
must follow to the panel, whether you are of 

* i Stark. Crim. Plead. 340. 



opinion that the libel is abandoned, or whether . 
you to tlirough the form of declaring it de- 
serted. The Court cannot acquit the panel of 
thechar^ against him. Your lordships are 
not the judges of the fact AU you can do is 
to declare the diet deserted ; and the conse^ 

Suence to the pauel is the same, for he may be 
etained in prison and indicted again next day 
for the same offence. To constitute the Court 
judges in a previous question as to the pro- 
priety of the prosecutor's conduct in insistins 
m, or abandoning the libel, would be attendea 
with the most extraordinary consequences, for 
whidi it cannot be supposed that the panel's 
counsel are prepared to argue. It would in-- 
troduce a course of procedure hitherto un- 
known, which, if it bad been introduced in 
other tiroes, might have led to the superseding 
of the jury altogether, and which must in any 
times invest the Court with the office of the 
prosecutor. 

It was said that the Court has a discretioa 
to exercise in deserting the diet; that it may 
do it simpliciier^ as well as pro loco et tempore^ 
if good grounds be shown ; and that the power 
<^ abandoning the indictment contended for 
takes this discretioa from the Court. Mr. 
Bumet,* contrary to this statement, howwer, 
savs that the prosecutor is not bound to show 
why be moves for the desertion of a diet pro 
loco et tempore^ and thai the Court must grant 
any motion which he makes to that effect. But 
I am quite willing to admit that Mr. Bnmet 
has stated this doctrine somewhat too broadly^ 
and that he has quoted in too unqualified a 
manner (as he not unfrequently does), the im- 
port of a decision to which he refers in the 
note in its sup^rt. I perfectly coincide with 
Mr. Hume's view of the subject, that thou^^ 
the prosecutor cannot be compelled to discloae 
his reasons for his motion to desert pro loco el 
temporcy the Court have a discretion which, if 
an extreme case be made out, they may exer* 
cise by deserting the diet simpUciter ;\ thou^ n 
more difficult question remains behind, to dis- 
cover what benefit the panel can possibly de- 
rive from that proceeding. All this, however, 
relates to the case of the prosecutor moving 
for a desertion pro kco et tempore^ whereas 
here he has made no such motion. 

I am not contending for a povrer inherent 
in the public prosecutor, without a remedy for 
any evil that may follow from it. All I say is, 
that the panel is already out of Court as for 
as the first libel is concerned, and that he has 
nothing more to ask for by desertion of the diet 
of that libel than what has happened by its 
abandonment by the public prosecutor. Where 
then, it may be askea, is the remedy in a case 
. of oppression ? The answer Is, that by serving 
a multiplicity of libels and successively aban- 
doiung them all, the circamstances of oppres- 
sion may be stated to the Court, if there be 
any to complain o^ when, by insisting on a 
new indictment the panel shall at length be 



• Page 310, 



t Supplemonli 237. 



3491 



Jbr AdminitUring untawfid Oaika 



A. D. 18lt 



BHMr 



called opon to answer at llie bar ; or the panel 
may have liis grieTances previously discussed 
by presenting a petition* But it will always 
be reaembrnd, that it is his own fitult, by 
neglecting the remedies of the act 1701y if his 
imprisonment shall in the meantime be pro- 
longed a single day. And it is not easy^ there- 
lore, to conceiTe m more harmless application 
that can be made to a prisoner than tne service 
of a series of indictments, whether relevant or 
not, that are never insisted in, or to imagine 
bow any evil or oppression can arise from such 
a proceeding. 

in the present instance, and in the present 
BiMft of me business, there is clearly no case 
before the Court from which the panel has to 
ask rdiei^ or of which he can complain, or on 
which be can be heard at alL The learned 
counsel for the panel are entitled to come for- 
vraid and state their hardships, if any shall 
occur to their fertile fancy, and they will be in 
order in doing so, when the panel shall be 
broQght again to the bar, and the prosecutor 
shall insist in a charge against him. It will 
then be for the Court to consider, whether a 
case is made out that calls upon Uiem to desert 
the diet sinrpKciiter, rather than pro loco et tern- 

C\ ; and, after all, if your lordships should 
e recourse to this unusual proceeding, I am 
yet to learn what be lefits it would confer upon 
a prisoner more than the ordinary species of 
desertion pro loco et tempore^ if obtained with- 
out the consent of the prosecutor. On a point 
on whidi Mr. Hume has spoken with so nrach 
caution and reserve, it does not become me to 
say any thing. For every evil there must be a 
remedy; and, for all injustice there must be 
redress in the common law powers of this su- 
preme court; but the question is, whether the 
provisions of the act 1701 are not intended to 
meet every case that can occur, and whether a 
case can possibly occur, in which the Court 
would be justified in adding or attempting to 
add, to the safeguards of that law. 

^e have heard that Mr. Hume's authority is 
against us in this part of the case, and that is 
an authority to which we are all disposed to bow. 
But I must confess, that I have not been able 
to discover in any part of that learned author's 
work, such a meaning as has been imputed to 
bim. I admit the justice of all the remarks 
that have been quoted. But your lordships will 
observe how Mr. Hume was quoted. There was 
nothing referred to as to his opinions of the 
prosecutor's power of passing from, or aban- 
doning his own instance; but passages were 
quoted from diflerent parts of tne b<K>k as to 
Ibe desertion of the diet. I must, however, 
beg your attention to those passages in Mr, 
Hume's woriL where he speaks of the prosec^ 
tor's power to abandon hu instance ; thus, he 
^ys,* ^ at any period before remitting an in- 
dictment to an assize, the prosecutor may 
abandon a faulty libel, and raise another in a 
more correct and better form." I am aware 



• Vol. 3, p. 30C. 



» « • . 



that dkis is not an authority directly In point, 
as the author is there only speaking inci* 
dentally on this subject, and we have seen how 
easv a matter it is to take detached passages 
without reference to the context and general 
bearing of the author's meaning, in order to 
support a particular purpose. Let us then see 
what Mr. faume says vrMu treating ezpresriy 
of the prosecuto/s iiistance. ^' ^ the Lord 
Advocate's instance is thus in one sense inde- 
pendent of the party injured ; so it is also in' 
this other sense, that it is entirely under hie 
own management and disposal as to the sea^ 
sons and occasions when, or the mode wherein, 
or the effect to which it shall be used. For in 
none of these points can any individual, nor 
even the supreme court, pretend to any con- 
troul or superintendence of him; as indeed,'^ 
marie the conclusion, ^ as indeed to allow any 
such interference on their part, would in sub-' 
stance be to make the judges prosecutors^ who 
ought to be kept free as &r as possible of all 
previous impressions of the case."* 

I submit, that if these passages be oomparecl 
wiUi those quoted on the other side, whin last 
rdate entirely lo the desertion of the diet, and 
do not contain a word about the proseoitor's 
power over his instance, there wiu be no dis-' 
crepancy or contrariety found between them. 
Deiertion of the diet is an act of the Court Y 
but as to the instance, the prosecutor has that 
entirely in his own hands. Your lordshipe 
cannot keep the prosecutor in Court a minute 
longer than he chooses ; and the panel cannot 
prevent him from withdrawing, mr he has all 
the bene6t from that proceeding which he can 
derive from any desertion, and receives no 
harm from it 

As to the MiKie of 15 dajrsy if it be compe- 
tent and proper to serve one indictment dunng 
the currency of a previous one, that question 
is at an end. The mimim of the second must 
run from the date of the service^ else the power 
to serve the second would have no meaning 
whatever; and accordinglv this will be found, 
on inquiry, to be agreeable to the praotioflKi 
Your lordships will remember the ongin and. 
nature of the iMftiM of citation, for an ettenp- 
sion of which the panel is not attempting to 
plead any equitable claim. The vJme aie 
not founded upon statute but upon an equitii 
able practice. No case is here made out in 
equity for a delay; and it certainly will not 
be said that there is any practice against the 
running of the second tndMnc before the deses- 
tion of the previous diets. If it be compe t en t 
to serve three or four indictments at once, it 
must follow that the Mmm of the whole wmif 
run at the same time. But at all tiiase,.befoie 
a trial is brought on, the Court wR grant sooh 
delay ka may appear proper in the drcum- 
stances of ^ny particufaff case. 

' A complaint has been made that the panil 
has been embarrassed with diffarent hbelipin 
preparing bis defence. To this it is a svflkient 



4^ 



« Pag^ 215. 



sftU 



57 GEORGE HI. 



Tri4d of fViUiam Edgar 



i:362 



answev, that he may establish this fact of em- 
hamuBsmenty if he cany as the grounds of a 
iBOtion for delay (which appears to be consi- 
dered a great advantage to the panel, and is 
in fact the real object of this discussion) sup^ 
poaiag him to succeed in persuading your 
lordships ibaX the first libel is not abandoned. 
But I nave already said that there is no room 
here for any statement of hardship ; the se« 
cood indictroept being the same as the first, 
with the omission of two or three lines. This 
<l^jection, if it existed at all, would apply with 
tenfold force to the common case of au alter- 
i^tive charge of two crimes in tlie same libel, 
or to the ease of a panel served with several 
Ub^s for as many different offences, when he 
would have ten times more difficulty in the 
preparation of his defence ; and yet it could 
w>t be pleaded to be incompetent to make 
such a cnaige, or to serve different libels at 
once for different offences. This very year an 
ipataiice occurred where the same individual, 
John Campbell, was tried on two separate 
Ubels on two consecutive days^ and convicted 
OB both. 

LordJtMice derk,-—! tried a man on two 
different libels upon the same day last circuit. 

Mr. Drtmimond. — ^It was observed, that in 
ibe prooeedings of the Court of Justiciary in 
points of form, many cases have occurred un- 
worthy of being followed as precedents, and 
namv examples of loose and irregular practice. 
My lord, I cannot allow this to pass uncon- 
iradicted. I have never had occasion to make 
•fiieh a remark myself, or to hear it made by 
oUiers : 'On the contrary, I have always looked 
up to the practice of this Court, as a model of 
aceuracy and correctness in points of form. If 
the learned gentleman go back to bad times, he 
nay find some things not to be imitated, but not 
certainly in modem times when the practice 
of the Court has become more mature and 
perfect. 

I cannot sit down without ofierins a few re- 
anarks upon the cases stated in £e printed 
minute for the panel. It is said, in the second 
page, ^ Tliat a search from the year 1777 
idownwaxda bad first been made, and the result 
iiad been communicated to the panels some 
4ays ago : But that after this a search had It 
«eema been made, which appears to go back 
to the beginning of. the last century ; and the 
«Catement of the oases so found was only com- 
aiuaicated kte oa this day. That on the part 
"^if the panel itijaay now be assumed, that the 
Court W before it every, one example which 
liis majesty's. advocate has been able to dis- 
•eorer,, ia the.course of more than a century ^ of 
any. proceedings which be thinks calculated to 
>a«pport the measure which has been adopted 
in this case, or .to meet the objectioq founded 
on the cleai^st principles of law.'' This is a 
▼ery erroneoos statement of what has been 
dene in point of fact. Our search began in 
-t777f Hmd prior to that there Jvas lui aeaich 
at all. The cases, stated before ao^ not the 



result of a search ; and the panel's counsel 
are not entitled to say that no other cases can 
previously be found, for the only search made 
was since 1777. 

Upon the case of Mendham, it is observed, 
that ** in that case the panel had cleariy no 
interest to make the objection, but quite the 
reverse.*' I do not think that the circumstance 
of a panel having no interest to state an objec- 
tion is at all a sufficient reason to exclude a 
case from being quoted as a precedent, as 
seems to be assumed. It is the duty and the 
practice of the Court to look to the correct- 
ness of the proceedings at trials, whether ob- 
jections be made or not : A strong example of 
which lately occurred in the case of Bell and 
Douglas, where, though the guilt charged was 
acknowledged, the indictment was not allowed 
by the Court to go to an assize. Similar 
examples of the discharge of this duty by the 
Court must be familiar to us all. 

It is said, however, that in this case of 
Mendham, the panel had no interest to state 
the objection. But, we must not look to the 
result in judging of this interest, but to the 
circumstances in which he stood at the time 
for making the objection. How could he know 
at that time the result of the obiection to the 
relevancy ? and until the Court determined as 
to that, It was impossible that he could know 
whether it was his interest to make this ob- 
jection. 

If you turn the page, your lordships wilt 
find a complete shifting of the argument of 
interest, for, in the case of Somerville, it is 
there maintained that the panel had no interest 
to state the objection in question, although he 
was found guilty and convicted. He had an 
interest, it would appear, to state objections to 
the relevancy of the libel ; for this was done 
by some pf me learned gentlemen on the other 
side of the bar who defended him ; and in 
consequence of the objections so stated, the 
indictment was abandoned, and a second in- 
dictment was brought* He had, however, no 
interest, according to the view of the case in 
the minute for the panel, to object to the trial 
and punishment, became the latter <' could not 
exceed imprisoiimeni and pillory,^ Those re- 
sults are not in general so coolly anticipated ; 
but where did the learned gentleman who 
wrote this minute find the law, that this is the 
utmost extent of the punishment of perjury ? 
and how did he lose sight of the fact ih that 
particular case, that the panel was over and 
above condemned to what was perhaps to him 
a still severer fate, to pay ^150 of damages, 
and the whole expenses of process? As to 
the expense, he had only the ordinary allow- 
ance bt two, or at most three, counsel. Here 
there are a great many more. I do not pre- 
tend to enter into tlie secrets of the giher side 
of the bar, but appearances, at least, are 
against the panel on this ground. The trial 
again, it is said, could be merely put off for 
1^ dayei4 Now, is not this all the panel asks 
for in the preaeat case f and yet we are told 



2531 



Jor Adtrinistering unUn^ Oatht, 



A. D. 1817. 



I3ff4 



that was the reason (he panel had no interest 
to plead the objection in the case of Somer- 
Tille ; and on that occasion it was said to be 
as well to beconvicted now as 15 days hence 
though in thik case the very idea of such a 
doctrine is reprobated as quite untenable and 
preposterous. 

With regard to the case of Alexander Camp- 
bell, it is saidy " This is not a case applicable 
to the point at all. There was no question 
about any new indictment, and the circum* 
stance of the public prosecutor passing from 
particular charges in an indictment, intending 
or reserring the power afterwards to raise a 
new indictment, is wholly immaterial to tbe 
question." I conceiye nothing can be more 
iu point than this. What is law as to one 
charge in an indictment, must be law as to the 
whole. My statement, I observe, excites ridi- 
cule — ^but let it be answered. I repeat, that 
whatever proceeding is competent for the pro- 
secutor as to one charge in an indictment, 
ninst be competent as to the whole charges ; 
and that whatever he can do as to one of 
several diarges, he can do as to one charge 
standing alone. It will be observed, too, that 
this proceeding took place in the case of 
Campbell after the panel had pleaded not 
guilty, though that certainly does not appear 
to me a matter of so much importance, as it 
cannot £ul to appear to the learned gentle- 
men opposite from their views of this point 
of form. 

It is not disputed that the prosecntor may 
afterwards bring another indictment on a 
charge so abandoned. 

It is next said, with the customary inaccu- 
racy, ^ But at any rate it is humbly appre- 
hended, that even this takes place only with 
the consent of the Court, which is expressed 

Sf the terms of the interlocutor of relevancy .*' 
ow, there was no consent of the Court, and 
there neither was nor could be any mention of 
it in the interlocutor of relevancy. The inter- 
locator finds the relevancy of the libel as 
resiricUtL Tbe Court did not desert any diet, 
and could do nothing but proceed to the con- 
sideration of what remained after the prose- 
cntor had withdrawn one of the charges. 

Then comes the case of John Horn, who is 
also said to have had no interest to make this 
ol>|ection« He had an interest, however, to 
ol]gect to the relevancy of both indicfments : 
At least, a learned gentleman, Mr. Jeffrey,'' 
most have thought so, who was his counsel, 
and made the ejection. Now I cannot see 
how he had an interest in the one and not in 
tbe otber^ delay being the object, and the only 
consequence, of stating either the objection to 
tbe service or the objection to the relevancy. 
Id fkn. pase of Horn there were two charges, 
uttering and selliog forged' notes; both of 
which were ultimately £und relevant, Tbe 
panel did not know till after the interlocutor 
cfi relevancy that the prosecutor had a^y in- 
tention not to insist on the first, which was a 
capital charge. 



liie case of Bell and Douglas we are tolA 
has no analogy to the present question, because 
^*BeU pleaded gidUy to both vuUctmenii ; and as 
to Douglas, the diet was deserted.'* But that 
cannot remove the case as a precedent, for 'the 
panel certainly had an interest to state the ob^i 
jection if he bad thought fit to do so ; nay, he 
had a more than ordinary interest, having his 
confession of the first indictment standing on 
the record, whatever the prejudicial efllsct ctf 
that circumstance may be to a panel. This 
induciA of the two libels are proved in th& 
case to have run at once. 

With regard to the case of Hamilton, it is 
said that there may have been only an intention 
to raise a new indictment, notwithstanding 
mention is made of the ''new indictment 
rmteiJ' That will not do. It is impossiUe 
to construe an indictment actually raised into 
an intention to raise an indictment The re- 
mark, that thd informations '' might have bean 
on the form of citation, or on other points not 
necessarily implying that there had been a 
plea to the indictment,'' is quite unfounded in 
tact. Before the Jurisdiction Act of George 
II.*. informations were given in in eveiy c^e, 
that being a form which could not be dis- 
pensed with. Those informations contained 
tbe statement of foots ux>on which the panel 
chose to rest his plea of not guilty, as well as 
the objections that occurred to him in point of 
law to the relevancy. In place of this cum* 
brous proceeding, which had become a grie- 
vance and an obstruction to the course of 
justice, that excellent law substituted the 
written defences, which, by a slovenly practice, 
are often neglected to be lodged, though they 
are in fact one of the most important steps of 
the whole process, and might, perhaps, super- 
sede altogether the unmeaning and embarras- 
ing ceremony of entering a plea before the 
Court, which may be immediately afterwards 
retracted when the Jury are sworn. The in- 
formations were in fact at that period not 
merely pleadings on the relevancy, but also 
defences, or explailations of the plea of not 
guilty ; and it is, therefore, most erroneous to 
say, that though informations had been given 
in, it does not follow that ''the panel Aocf 
pleaded:^ 

As to the case of Feroie, the minute stated, 
'' that it does not appear when the new indict- 
ments were raised.'' But your lordships will 
see in the prosecutor's minute, page 6,. that it 
was the very same date upon which both libels 
were called, consequently they must have been 
both previously raised, and must^have sub- 
sisted together; and the MuddB of the last 
must have run notwithstanding the existence 
of the first, which is all that is contended for. 
The word " raised " in this place plainly in- 
cludes and implies " executed, for tbe diet of 
compearance could not have arrived unless 
this had been the case. That the lord advo- 
cate, therefore, has not power to proceed as he 
■ — >__^ " 

• • Stat; 20 G. 2, c. 48. 



9561 



ffl OEOROE Uh 



TryUqfWUUamEdgQf 



(356 



liM doM on this occasioDy is % oonclntion 
whioli cannot be diawn from this, any mote 
Chan from the other oases that have been men- 
tioned ; and tbeie is no authority whatever for 
the statement, that ** it was not imasined at 
that time that he had any power to abandon 
an indictment otherwise than by motion to the 
Court.'' 

The other cases in the minute for the panel 
«ra not in point ; but they serre to shew the 
practioSy that diets may be deserted pro loco et 
iempote even after interlocutors of relevancy. 

Lord'AAfocate, — ^It is unnecessaryi and it 
would be doing little justice to the argument, 
if 1 added one word to what has been stated. 

Mr. DruimmmtU — ^I omitted to observe, that 
the case of M^Renxie, which Mr. Cranstoun 
tjnoted from Mr. Hume, vol. iiL page 10. seems 
to have been quite misonderstOKod. It ob- 
viously relates to a perfiMtly different question 
from any thing now before the Court. There 
the prosecutor moved the Court to desert the 
diet in absence of the panel, contrary to the 
great leading principle, that no oroceeding can 
•take place ra absence except nigitation ; and 
the Couft continued the diet (as fugitation 
was not moved for), till the panel should have 
tin opportunity of showing why he did not 
tittend. 

Mr. Ckrk. — ^I am sorry it has fallen to me 
lo answer the other side, for Mr. Cranstoun 
bad an opportunity of considering the case : 
I had not. I have but a general recollection 
of what passed last day. But I shall submit 
a lew observations upon what has been stated 
by Mr. Home Drummond. 

If your lordships think that the practice is of 
considerable importance on this point, I shall 
begin with offering some remarks upon the 
precedents which luive been cited. Your lord- 

. ships have heard quoted a great many instances 
in which the public prosecutor thought it in- 
cumbent on him to get quit of one indictment 
before he directed another to be served. You 
have a great number of instances of this prac- 
tice by the most learned persons who have 
filled the situation of his majesty's advocate ; 
and it seems to be the natural and necessary 
consequence of th^e opinions which your 

' lordidups have firom Mr. Hume in several 
different passages of his woik. I shall refer 
your lordships to that practice. It is one 
which has been discovered in consequence of 
a very anxious search into the records for more 
than a century. We have been told by Mr. . 

. Home Drummond that there has been no re« 
gular search into the records of Justiciary. I 
understood that these records had been very 

' anxiously searched; and, whether so or not, 
I am entitled to assume that neither party 
can . suppose there are anjr other instances 
in the records. than those whidi have been laid 

. before your lordships. These are sufficient, 
at least as specimens of the practice ; and I 
must retain my private belief, that whether 



he is or is not entitled to say there has not 
been that sort of examination which may be 
properly called a search, yet that there was 
such a search as to satisfy your lordships of 
the eeneral nature of the precedents to be 
found in these records. 

Assuming this, what is the result? Upon the 
one hand, you have a great many instances 
indeed of first indictments being abandoned — 
the diet being deserted — ^where the libel had 
been abandoned by the public prosecutor 
before the panel had pleaded — which we never 
disputed his title to do. We never hinted, 
that he has not as good a title to abandon as 
he has to raise and execute an indictment, if 
the panel has not been brought into Court, and 
parties have not joined issue. In a certain 
number of these instances, you have evidence 
of the opinions of the learned persons who 
conducted the business, that this is a proper 
and necessary mode of proceeding, because, 
by proceeding in that way, they put themselves 
to some more trouble tnan according to the 
mode now recommended by my learned friends. 
This is a practice as to whidi there could be 
no contradiction, for it is admitted, that« what- 
ever is right or wrong in the present debate, 
the prosecutor may abandon the old, and raise 
a new indictment. This is a practice which 
can only show the opinion of the public prosecu- 
tors — most learned men — and also their opinion 
of the way in wliich the Court consideredT these 
matters. It is impossible you could have the 
judgment of the Court upon all of these points. 
What are the proofs ? Except in one case, it 
is not pretended that the point- was brought 
before the Court at all, so that there is no 
judgment upon it. And as to that case, all 
that was said was, that there was some conver- 
sation, but no record of it — a conversation 
between the learned gentleman and one of 
your lordships. And though I attended every 
diet as counsel for the panel, I certainly do 
not remember that conversation : and that is 
all that is brought forward as a precedent. It 
is a jest to say it is a precedent. It is incum« 
bent upon you, and you perform the duty as 
well as you can, to attend to the regularity of 
your proceedings ; but where the two parties 
are both keen, zealous, and anxious, all the 
zeal of the public prosecutor on the one side 
to obtain justice for the public — all the acute- 
ness upon the other side to state every thing 
for the defence of Uie panel, in so far as useftil 
to him, it is natural for you to take for granted 
that every thing is right, if nothing is menti- 
oned as being wrong. Therefore, if an cAjec- 
tion be not ^ted on either side, and do sot 
appear from any innpeetion of ^e record, I 
submit to your lordships, that to stale a practice 
of this kiiid as being of any authority wnat^r, 
is one of the most violent attadE^ upon n f«igu<* 
lar system of law that I have ever beard of, 
either in this Court or in any other. I was 
counsel for Somerville. I dare say I attended 
to his interest as weU as I could. He was 
anxious enough, T dare say, to escape convic- 



J 



2571 



Jqt Itdminutering unlawfiil Oaths* 



A. D. 1817. 



[238 



Uon of tlie crime of whidi he was accused — the 
crime of perjtiiy. Bat, noiwithstandiDg my 
situation, I certaioly did not consider it of 
tbBLt great eminence which the pablic prose- 
cutor seems to think it was. I did not consider 
myself as acting as a great legislator upon 
the occasion. Nor did Mr. SomerviUe on 
the piUoiy think he was dispensing new law 
ftr me government of your lordshijps. What 
was done was done with consent of SomerviUe, 
and without objection. 

Tour lordships watch orer the regularity of 
proceedings — but if the panel consent to any 
particular measure, and your lordships do not 
observe that it is irregular, can that affect the 
proceeding in law, and a most important prin- 
ciple in law f What I apply to the case of 
&)menrille may be applied to every one of the 
cases. If they coula nave produced one pre- 
cedent—one case in which the panel, consi- 
dering it to be necessary for his defence, or of 
any use to him, had opposed a proceeding of 
this nature, and you had overruled the objec- 
tion, I should have considered that precedent 
iforth all the rest upon both sides of the 

aoestion. No such precedent has been pro- 
uced. And because perhaps a hundred pan- 
els have been brought to the bar, and a few of 
them have allowed this proceeding without 
objecting to it, possibly without having an 
interest to state an objection, 'and possibly 
without being aware objections might be stated, 
as junior counsel are often for the panels, they 
cannot be considered as prec^cnts. It may 
be for the interest of a panel that his trial should 
not be delayed ; and mstead of putting off the 
time of the Court with the objection, and re- 
alining longer in prison,, a panel may often 
wish his trial to proceed, where, had his counsel 
oflTered the objection, and supported it before 
tbe Coart by argument, the Court would have 
siren it attention, and seen its propriety and 
mce. But a panel, by delay, may also incur 
fiirther expense, to which he will naturally be 
mveise. This person, Mr. SomerviUe, was 
not one of those mendicant clients, of which 
ihexeare numbers in the Castle at this mo- 
ment. He was ..not in the situation of the 
panel at the bair, whose counsel, from a sense 
of public duty, are putting him to no expense 
what^rer. t, for one, am proud of my situa- 
tMm/ and every one of my learned friends 
entertains the same feeling. SomerviUe was 
ppt.ta a great deal of expense in the manage- 
nent of his case ; and how could it have served 
Mm to delay his trial from day to day ? It 
would not have availed biim. There were Mr. 
ISiQertDn and myself, and perhaps another 
counsel at the bar at his expense. There is 
no doubt it was his wish to go to trial upon 
that day. 

Lord Jtutiee Clerk. -^I see from my notes 
yea did move the Court to allow the expenses 
of preparing for the defence of the panel. 

Mr. Clerk, — I feel great obligation to. your 
)x»rdahip, and' so mi&st my client the panel, 

VOL. xxxm. 



for your mentioning this circumstance. That 
shews there was great expense attending that 
trial, and as there was great expense, Mr. 
SomerviUe would naturally be averse to any 
unavailing delay, which must have been attend- 
ed by additional expense. 

At to the other cases, it has been remarked 
by the prosecutor, that we say it was for the 
interest of SomerviUe to go on with the trial, 
although a conviction foUowed ; and then he 
gave us a most facetious contrast, indeed, be- 
tween this case and another, in which it was 
not for the interest of the panel to state the 
objection, because the libel was not well found- 
ed, and the panel was acquitted. In this way, 
says my learned friend, whether convicted or 
acquitted, they find an interest not to state the 
objection. I apprehend, such shifts as this 
will never stand in your lordships' minds in 
place of solid argument ; for, in the course of 
a century, I think it is strange a panel should 
not find it for his interest to wave such an 
objection as this. Delay is generally incon- 
venient, and an expense to him ; he has the 
advantage of the tist of witnesses to be brought 
against him being given in the indictment; 
and he does not know what other witnesses 
may be brought forward under a new indict- 
ment ; and it is utterly impossible to account 
for the desires and wishes of men in such cir- 
cumstances. One thing is certain, that, in the 
consideration and preparation in all cases past 
and to come, it has oeen and frequently will 
be the desire of the panel to go on without 
stating a dilatory objection. I apprehend, 
that in the present case you will not particu- 
larly inquire into the motives of the panel for 
stating the objection. He seems to be in a 
dangerous state — ^whether you will find against 
him or not, it is impossible to say ; but he is 
in a dangerous situation, and I cannot be 
called upon to explain the particular motives 
for wishing for the delay ; and, therefore, I 
submit to your lordships, without makina more 
remarks upon the particular cases which have 
been adverted to on both sides, that these 
proofs which were pleaded on by the counsel 
for the Crown are not such as should have the 
least effect in regulating the law of the case, 
more particularly as the proofs are against the 
Crown. i 

But, the principle of the law is still more 
against them. Let us consider what is men- 
tioned by Mr. Cranstonn, the proofs of single 
judges refusing bills of suspension. A panel 
was tried in an inferior Court, and subjected 
to an ignominious punishment, of which he 
wished to get quit altogether or have it miti- 
gated. In numerous cases persons so accused 
presented bills to this Court, and they were 
refused by single judges, some of them the 
first judges that ever appeared in this country. 
Lord Braxfield was one of them, not to men- 
tion other names. Is it possible to conceive a 
case, where a man so convicted had not an 
interest to dlqect to a single judge refusing his 
bill ? It is impossible to dispute that the prac- 

S 



2591 



57 GEORGE III. 



Trial of WiUam Edgar 



lam 



ticewas a^inst the right principle, and the 
interest was against the ptactke. Yet when 
the point came to be tried, ^ou were of opin- 
ion", that the pnttitice mtMtt yield to the princi- 
ple of law, as it appeared to yoar lordships. 

With regard to the prineiple of law, a few 
observations — It occun to ne, m the first 
{lAace, that no attempt can be more desperaie, 
or more completely nnflronded, than the at- 
tempt made by the Crown counsel to cohvince 
yon that die public prosecutor has power to 
abandon an Imlictment after a panel has pleads- 
ed. It is directly in the teeth of thoie au* 
thorities which we quoted to your lordships, 
coming from that great master of the law to 
whose dktayovLt lordships give great attention. 
And how is that opposed ? They camiOt pre- 
tend to say that we have misconstrued this 
authority, which is positive and express, and 
cannot be explained away. But they have 
recourse to other dkia of Mr. Hume as b^g 
inconsistent with this^ Upon lookiikg to these, 
I have to express my astonishment Siey couM 
have been stated as inconsistent. The princi- 
pal of them, page 305, first vol. of Trtal Tot 
UrimcF, and third vol. of the whole work, whete 
Mr. Hume reasoning upon another pioitit al- 
together, says, *^ But what shall be said when 
the fact, which is related in the subsumption of 
the libel, though short* of the crime charged in 
the major propositioB, amounts, however, to a 
lower crime of the same class; as in the case 
of murder atid culpable homicide ; hamesucken 
and assault; theft and swindling; notour and 
simple adultery; ^and some others? In these 
circumstances, and on finding that his stoTy 
does not support him in his charge of thd higher 
denomination of crime, may the prosecutor 
nevertheless maintain his process, restricting 
his charge to the lower species, and limiting 
his conclusions as to punishment accordingly? 
This is an important question ; and some di- 
versity of opinion there has b^n among law- 
yers about it. Some have thought diat there is 
a violation of that decorum and propriety so 
fit to be observed in all criminal proceedings, 
if any ' one shall be tried on a libel (the 
fundamental writ of the whole process) which 
esfade, amd taken as it is laid before the Court, 
is a disjointed, mis-shapen, and inconclusiTC 
composition ; and tliat this consideration alone 
is a good reason why no such accusation ought 
to be sustained. But further, say they, to 
shew the prosecutor any indulgence in this 
article, is attended with a real hardship to the 
panel, who prepares for his defence*again8t the 
libel as laid ; and who knowing that he is secure 
on the ground which is iaken there, will na* 
tuially be less diligent or solicitous in providing 
for his exculpation, in regard to any inferidr 
d eg r ee of vguilt. One, for instance, who is 
aecused of parricide, and who knows thbi the 
person he killed 'vtas not Ills fiithev^ or who Is 
accused of hamesucken, and knows thai die 
aiaauH was not made on tbe comphnner at his 
nome }• may naturally conchide thaltMsBlnnder 
is «f itself aniikleBt to savf his lift; and will 



put himself, therefore, to less trouble witth re-^ 
spect to those other pleas of self-defence, gross 
provocation, and ^e like, which might serve 
to exculpate him, or to alleviate his guilt. If 
he were tried on an ordin^ charge of bieatihjg, 
or of murder." Then he says, **'The prosecu- 
tor, too, cannot well say that he suffers any 
wrong in tfie enforcing of sucSi a rule ; sinee, 
fbr o^inary, he has the means of being accu* 
rately informed of the fact before raising his 
libel; and if be have any doubt Of the pkoper 
style of the crime, he may lay his chtog^ for it 
under all the seversl denominations wh&cli may 
eventually be found to suit the case. Nay, 
there is still no hardship, though he discover 
the weidcness of his case aft^t the execution 
only of his indictment, siiiee at any period' 
before remitting it to at) asance he may aban)loii 
thi^ fkuUy libd, and raise another in more cor- 
rect and better form.^ * Does Mr. Hume or not 
cdnrecthis own errors, asf' they are suppoted 
t6 be' in the other passage he had written, as 
to the power of the prosecutor to abandon his 
libel? lliere is not the l^t hint of it. Tlie 
passage quoted by my client is that which must 
be understood as limiting this general passa^as 
to the power of the prosecutor.' That he may 
abandon the libel there is no doubt, espedalqr 
before the indictment is pleaded to; nay, a^et 
it, in a particular manner, fhere can h4 no 
doubt ; for he has only to move the Court, who 
will do so, unless there be apparent injustice 
in doing so. Mr. Hntne says, fit^t, he may 
abandon, and, hi the second place, that he has 
it not absolutely in his power— that if is thao- 
curate in point of style to say that he does if 
at ail — for that it is the Couri in cases whether 
public or private. The Court couM keep him 
to the libel if nropet; and ^ithc^forcb him to 
desert linrplkUer, to the eflM of haying no 
right to bnng a new trial, or hold him to the 
libel already pleaded to. This is Mi'.'Hume^s 
fair meaning. So much has been said' ujpon 
this, that I niall not trouble you with any mdi^ 
remaiks upon the power of the prbs^utor iki 
desert his libel. ' I may assume, be has 'no 
power without the authority of th^ Coiirt '^He 
nas just the same power as h man in other in- 
stances to do what is lawfol, but only in sight 
of the Court. Therefore any notice from hiin 
that he was to do such a thing might be very 
good notice that he was to move the Courts' 
but could be nothing ftfrther. He bad powe^ 
to give notice of- that, and to do it ; but stiH 
it- was only a notice of intention, and it i^ hot a 
measure till the Court interpose for the pdi^. 
pose. Ibis- is the sum and sul>stance 6f V^kt 
can be extraifeted from Mr: Hume oik tike subj^^' 
the authority to Ivhtch youbaVe been ' - 
tomed to>efer in all cases. ' 

As to Mt. Bttriiret^ h^ either is n 
perhaps corrects himself in another 
and be would ^veadmitt^)umsejiC.4i^i 
passase was to be understood tiihmpd^$9»A. 
that the Court should consent. 

Let us see where the rest of the aiEument 




lies: AismiiiDg ihm thtfpablk 




^•f f 






^i^ 



Jot Adminisigring unlawful Oaths. 



A. D, 1817. 



[263 



no power, without tbe act of the Court, to 
•^•]|4jOQ the lihel to which the panel has 
pjeaoed, U opous to me that a most ready way 
<p this question is to consider the case of 
Charteris; what was done in that case; and 
what is to be infened from that case, 

Jn the ease of Chaiteris four indictments 
were raised; and my learned friends were 
B^jiytf tp a^KTt (they are better acquainted 
with these aocient tim^ than we)» that it was 
il that time. a practice to raise matiy indict- 
ments. Many of the practices of that period 
*a9^ better honoured in Uie breach, thui tbe 
obfienrancey and niany of Uiem are so by the 
pree ent Court. Notwithstanding this, it was 
said to be the practice in those times to rais« 
a whole .bunch of indictments at the same 
ti^iie. This was done in the <»fa of colond 
Charterisy who said he should not be obliged 
to^ answer to the whole, fio, but answer to 
t^/ope read in Cour(, and you may plead to 
^kis lo^Mstment. You were told the question 
was, whether the prosecutor could insist in 
€nir. at the same time. I see no s«ch qaestioa. 
t(i^. . On the oontraryi it is stated by Mr. 
limmfi that some 9f these indictmenU were 
^iQed for other diets. But, be this as it mayy 
when Ghaneris wa^ told he had only to plead 
to this ii»dictment, what did that force the 
public jwQsecutor to do? Whether he was 
altempting to carry on four at the same time, 
or 'oDC» is of no consequence ; for the Court 
ioioed the others to be abandoned. Why was 
tbe pablic prosecutor obliged tQ give up these 
indictments? upon what ground ? Way was. 
ikot be allowed to go on with one^ suspending 
mr the head of the panel all the others? 
why did not he say, he wished this, and tiie 
Covui allow itp—the Court saying, *• only an- 
swer one. at a time, and no harm to suspend 
the.ptheJs over your head : They are not called 
Dpw, and may never be called : If you are 
ai^qjvitted^.you cannot be tried again for the 
same offence : They are for the same offence, 
and therefore there is no^arm in having these 
all againstyQu." The Court would not listen 
to this. The proseihitor was obliged to give 
up tbe indictn)ents,aiid thenCharteris pleaded- 
iVtt is a ^ir state of the case. Now, rohy did 
the Court ol£gp the prosecutor to give up the 
indictments before tie pleading? Thai is a 
h^ipa question ;; and no answer has been given 
to it. The a^wer is given b^ Mr. Hume, and 
a jomt aatisbctoiy answer it is, and he repeats 
' itji^^ and again in different passages. The 
r^lp^ was — oppressing the panel in the ma- 
nagement i)f his defence. The Coprt ought 
nj7 to allow that, and why? Because con- 
tmry to the rules of justice, which are para- 
mount to aH other rules in this CourL We 
were told, that an act of parliament is of. 
gi;ea|«r anthori^ than a law of practice of the 
Cpurt. I apprehend a judgment of the 
Court, proceeaing upon rules of justice, is 
stranesr.thai^aoX other precedent. .1 am en- 
title^ tp jassoaae, that tais was considered bv 
the <Coart as tha jostica of any case m which 



more than one libel would be hanging over a 
man's head while pleading. Mr. Cransto^n 
put a question, would it have be^ fcoi^peient 
tor the prosecutor, after abandoning these, tq 
have served them over again, or new p^es to 
the same effect P If any public prosecutor had 
dared to do such a thing, the Court would 
have taught him his duty. If any public pro- 
secutor had been daring enough so to tamper, 
and attempt to evade the justice of the Courts 
in a manner which would have been so grossly, 
shameful (I am not intending to apply any 
strong epithets to the proceeding before you : 
I think It is a mistake, and a natural one, on 
the part of my learned friends, to act as thepr 
have done) : but in the case of Chaneri^, it 
would have been considered a gross contempt 
of the judgment of tbe Court. What has 
been done in the present case ? It seems that 
a public prosecutor cannot serve foqr libeU at 
once, to the effect of bringing a, panel to, trial 
upon one. Though he cannot do it, he can 
do another thing. He has no occasion to serve 
his libels for the same time ; but immediately 
aiter tbe panel has pleaded to oney be may. 
serve half a dozen for the same offence, beibre 
that libel which has been pleaded to has been 
^disppsed of by the Court.. It is ludicrous to 
"maintain this. It is contrary to all reason 
that could be applied to a thing of the kind. 
If there is any legal principle in the case of 
Charteris, this is impossible. 
I apprehend the question lies here. If the 

f>roaecotor was not entitle4 tp serve a new 
ibel, then the new libel was not /lerved, .for 
there is one great law of justice as of eqiiity. 
** Id tantum pot$umiu quod dfi jure pofiuutrnJ* 
If the public prosecutor had no right to serve 
that libel, then you will consider that the libel 
was not served) and that is my reason for. in* 
sisting at your lordships' bar, thjat the. panel 
cannot be obliged to plead to that libel. The 
former libel has not been deserted to this mo- 
ment; you have not yet consented to it. I 
am not going to Hy anv thing so insincere as 
that you will be called upon to refuse vour 
consent, when proposed on the motion of the 
public prosecutor. But the public prosecutor 
has taken a high sution here. He refuses to 
move your lordships to desert the diet ; and 
therefore you have never had an opportunity 
of considering the point, whether it should be 
deserted or not. If the diet had been de- 
serted this day, before we began to state this 
point to your lordships, there is another ground 
sufficient for us which would have arisen. I 
shall not plead any thing without an interest. 
I jam entitled to tell them, the libel would in 
thiat case have been considered as served this 
day, that I m^y have time to prepare my de- 
fences. I shall not enlarge upon the hardship 
which might arise to the panel, from being 
obliged now to answer to this libel. It is 
sufficient for me, that the practice which has 
been followed here is contrary to the esta- 
blished practice before your lordships, and the 
best prosecutors have uniformly deserted libels 



263] 



£7 GEOUGE 111. 



Trial of IViUiam Edgar 



Ca64 



before serving second iDdictments. There 
may be hardship in this case, and thei% might 
be greater in others. As to the case which 
was stated by Mr. Cranstoun, of two libels 
depending at the same time^ and one of them 
where the panel was to be tried in Edinburgh, 
and another at Aberdeen, that proceeding 
would be so harsh and unjust, that even 
leaving mattera to the discretion of your lord- 
ships (which every sound rule of jurispru- 
dence is against, for the Court should have no 
discretion as to such matters), you would in- 
terpose a remedy for the eviL But the rule 
6f law is not more against such a proceeding 
tlian against the present. I should have no 
apprehension of the consequence in that case ; 
for, till a total desertion of law and justice in 
the country, such a thing could bot be admitted. 
But, is it no hardship to be perplexed with 
two libels at the same rime } The question of 
relevancy is attended with the greatest nicety 
and difiiciilty, and has given counsel a great 
deal of trouble alteady— and is there no hard- 
.ihip in having to give as much consideration 
to a new libel? That former libel was at* 
tended with so much difficulty, and occupied 
so much of the attention of the panel's coun- 
sel, that there is no saying what pleas might 
have arisen to them under that libel, and pre- 
^nted them fi^om paying attention to the new 
libel. What if the connsel in the former case 
Imd not thought it incumbent on them to 
support the panel in the present ? What if 
he had been deserted by his agents? I do 
>tioi suppose there is any chance of that in this 
case ; but this signifies nothing at all to a ge- 
neral rule, to which your lordships should 
adhere in all caaes. There have been cases in 
which a man has beeti defended by counsel 
and agent in one indictment, who did not 
think it incumbent npon them to defend him 
in another. It wIa said, that the panel had 
notice a considerable time ago tliat the libel 
was to be abandoned. That Hvas an accom- 
modation. But what if the public prosecutor 
had given no such notice ? It was not incum- 
bent on him to give any notice. And as the 
panel would have been brought to this bar, 
with his counsel and agents ready to defend 
him in the former case, after bestowing great 
attention upon it, but not prepared to defend 
him in this case ; is not that a situation which 
your lordships would take into consideration, 
if any thing depends npon the possible bard- 
ship? The counsel and agents might hive 
been brought to your lordships' bar, under the 
impression that the trial was to go on on the 
first indictment. When they come, ready to 
defend him, they are told that that case is 
not to be tried. The prosecutor prays the 
Court to desert the diet pro loco el tempore^ and 
then proceeds npon a new indictment, of whidi 
the counsel and agents bad no notice what- 
ever. Having held this out against him, he 
finds the whole trouble, research, time, and 
expense of previous preparation, thrown away, 
and that he must be ready, upon the most 



summary warning, to proceed to trial on ano- 
ther indictment. 

I may be told, such a case can hardly hap* 
pen, in which the panel can be deprired (yf 
the whole mdueUs ; but, if be may be deprived of 
even a part of the indueia, he may therebv 
lose the assistance of his agent ana counsel, 
and what is more, may be deprived of the 
most material witnesses. 

We are told, that, in this indictment, there 
is only an alteration in a few words of the 
former. There is the very greatest difierence 
between the two indictments; which is most, 
difficult to defend, it is not for me to say. 
The major proposition is the same in both; 
but the minor is essentially different ; and the 
two require different sorts of arguments. 

Lord Hemumd. — ^This objection, not veiy 
material at first, has now as to the panel's In- 
terest dwindled into nothing. For as it is not 
pleaded that the second indictment is null, so 
as soon as fifteen days elapse from the aban- 
donment by the prosecutor, he can be brolkg|ht 
to trial. But it is argued there is a distinc- 
tion where the panel has pleaded, t. e. uttered 
the words '' not guilty,^ for that, it is said,con- 
stitates litiscontestation. I doubt, if that be 
a phrase in criminal law. It does not occur 
in any one authority. But if it be, it mnst be 
understood as in cwU^m$. • Litiscontestation, 
however, is not constituted by defences nor 
by pleading, it never takes effect till an aqt be 
extracted ; not an act and commission of mo- 
dem introduction, but an act far proof before 
the Court, or before the Ordinaries on oath* 
and witnesses. 

On this analogy the powers of the prosecu* 
tor continue till a jury be im);)anelled, and so 
was found in the case of Archibald, 1708. 
On this ground I cannot agree to strike out of 
the list of cases, those in which ^^ not guilty "^ 
has not been pleaded. On the other hand, tM 
panel's argument cannot be redargued on 
what is called list of cases beyond the period 
of search. Additional cases are given in for 
the panel, in all of which the diet had been 
expressly deserted; but precedents enough 
remain to settle the law. 

In 1st case, Lawson. — Diet deserted. 

In 2nd case, fiums.~No desertion, and trial 
proceeded on second indictment. 

In 3rd case. Berry. — Same procedure. 

5. Mendham. — Argument that panel had no 
interest to object;— not understood. 

7. Lindsay Crawfiird. — A serious case, yet 
wi^ut desertion ; trial proceeded on second 
indictment. It is argued, that in none of tbese 
cases was the objection pleaded. Why ? be* 
cause it was tiot thought relevant : The whole 
bar has been in a dream, till the ingenuity of 
the counsel here discovered what had been hid 
from their predecessors, though with all de^ 
ference to them not their inferiors in ability i 
and the same observation equally applies to 
the Court. 

Is not this fiufficicnt to establish a point of 
fonn? In one case, hovrever, the objeoiion 



2651 



y&r AdmutitttritiguHittti^l Oalhi. 



A. D. 1817. 



(906 



was broogbt into Yiew by myself, Ballantine 
against Somenrille. My notes correspond with 
Mr. Drammond's. An objection by a judge is 
as strong as that by a counsel. 

In 10th case, Horn.— No desertion, and trial 
proceeded on second indictment. That second 
indictment is competent, inveterate usage 
proves. 

Lord Giiiies, — This objection came unex- 
pectedly, and we gave our opinions imme- 
diately after it was stated. It happens that 
the opinion which I then delivered is that which 
I have formed Sifter all I have since heard of 
the case. The opinion I gave was, that the 
fiist indictment was not abandoned by the 
service of the second. I understood the plea 
stated on the part of the public prdsecutor to 
be, that by serving a second indictment the 
first vras abandoned, and that there was there- 
fire no occasion for deserting the diet. I think 
this doctrine erroneous. I think the first in- 
dictment did not fall by the execution of the 
second ; and the consequence is, that as there 
are two indictments subsisting against the panel 
at the same time, one of them must be dis- 
posed of before the other is proceeded in. The 
service of the second indictment does not ap- 
pear to me to be null, but the prisoner must be 
entitled to such delay as your lordships may 
think reasonable, to prepare for his trial upon 
it. 

I conceive it to be certain that the Court 
would think it a piece of great injustice, if the 
public prosecutor, after serving a second indict- 
ment, sbonld insist on proceeding with the first ; 
but I know no principle or practice which en- 
titles me to say he cannot do this. But whether 
he would be entitled to go on with the first or 
not, the prisoner may be entitled to insist that 
he should go on with it. What is the answer 
made to this? A broad assertion that the 
pablic proseciifbr has entirely the control over 
his own instance, — that he may abandon it 
whenever be pleases, — and that we cannot in- 
sist that it shall be prolonged a single moment 
after he pleases. He has certainly a control 
over his instance, — he may pass from his first 
indictment, — but what is the consequence? 
The Court pronounces an interlocutor deserting 
the diet, and in such terms as they think proper. 
If he passes firom it for no reason, or for bad 
reasons, your lordships may desert the diet 
un^pUciUTn You have the same power of 
checking him as any private prosecutor. 

The assertion, that ^ his majesty's advocate 
possesses an uncontrolled power over his in- 
stance in all stages of a criminal process,'' if it 
is to be taken literally, is directly in opposition 
to the doctrine laid down in the case of 
Archibald in 1768 ; but if it merely means that 
he possesses a power over his instance, subject 
only to the control of the Court, then it means 
nothing but what I have already said, that al- 
tbough the public prosecutor may withdraw his 
instance, yet the effect of his doins so is, that 
tile Court is called upon to desert ue diet, but 



in such terms as they think proper,— ^ro hoQ 
et tempore^ with right to him to insist again ; 
or if the prisoner ^ews that he acts impro- 
perly, then your lordships can desert it sim- 
plicUer. 

I must say generally, that I am not in any 
case for introducing novelty in points of prac- 
tice, or doing any thing inconsistent wim es- 
tablished law, by which a panel may be pre- 
judiced, or which has a tendency to increase 
the power of the public prosecutor. His poweit 
in this country are far greater than in the neigh- 
bouring kingdom — greater perhaps than in any 
other country, I do not say that they am 
greater than they ought to be. But as Uiey are 
so great they should be watched by us. Viewing 
the matter in this light, I think it proper to 
state, that the prosecutor having raised a se- 
cond indictment, the Court may, upoh his mo- 
tion, desert the diet pro loco et tempore. It 
remains for the prisoner to shew, if he can, 
that the second indictment has been raised and 
the first abandoned for unjustifiable purposes ; 
and if he can make out this, your loniships will 
desert the diet umpliaier, 

I state these matters with reference to general 
principle, and not to any tiling which has oo» 
currea. For there is no plea here of actual 
hardship, and the panel cannot be exposed 
to any injury whatever from what has taken 
place. 

The only point upon which I gav^ no positive 
opinion formerly is now one of the pleas of the^ 
panel, that the service of the second indictment 
IS null in consequence of the first indictment 
not having been deseited. I said formerly I 
did not think so, and I remain of that opinion. 
That opinion is formed upon considering the 
precedents mentioned in the additional mi-, 
nutes. 

With reference to the practice, I need add 
nothing to what has been said. As to the case 
of Somerville, we are informed that the diffi- 
culty was started ; and what was the conse- 
quence ? The objection on being argued was 
overruled. In that case, after an indictment 
had been raised, executed and pleaded to, the 
Court, without deserting, proceeded to the trial 
on the second. I had the honour to sit as a 
judge upon that trial, and I think we were 
wrong. I think it was the duty of the Court 
to have disposed of the first indictment by in- 
terlocutor oefore proceeding to trial on the- 
second ; and, in not doing so, our proceedings 
appear to me to have been erroneous. The 
proceeding in the case of Hamilton, in which 
Duncan Forbes " consents to the deserting of 
the diet without prejudice to him to insist in 
the new indictment,** appears to be more correct 
than that in Somerville's case. '^ The lord 
justice clerk, &c. in respect of the above con- 
sent, desert the diet upon this indictment, 
witliout prejudice to the pursuer to insist upon 
the new indictment as accords.*' That is the 
principle upon which I proceed^ and that is the 
precedent whiich ought to be followed. For I 
cannot subscribe to the doctrine, that a libel, 



1M9] 57 CllBORGB UL 

diiMA ill' sn^y citetitnMkixces' iti ^di tcfruft ai 
^M Md- addhroeate chooses to dietatISi 

All-UiM refmaHis Us the qoesihm/'vvftkt'del^ir 
shall be given to the prisoner ? At present 1 
|M ttbt^nSbii on tihat!; 

JkM PiMfl^-^I faaV^ nb reason tbtfaint; 
«M«^ fiom th^ aniietf dbplayed by th6 
jirtKmefer-coimscft in aiguing th^ point, that 
Iftife cpi^stion* rt isftn^ is of anr importance t6 
tb^pAltem^i but it is of importance to the la"*^ 
iM to tb« 'pnoctice of this Contt ; and I trust, 
thity aft^r having heard and^read so miich on 
tfi6 subject, we shall be able to pronounce an 
itfttitocutor which' will' set this matter on a 
|MMr fdoting^ in tiriie to come: 

Tne atgumeeft so abty stated by Mr. Crans- 
CMI is iMTW reduced int6 writings and stands 
ufMn'thb record 'of the' Court ; smd it appears 
16 vie. that in the radical point there is a ma- 
tiriitliefMt on that "side of the bar. It is said 
m Ae ininute for Ihe prisoner, that it is Incdm- 

Kti6nt<t6 serve ofUiglibet'wfiile another, by 
ving been pleaded to, is stiS current agdnst 
•rpaneh Thn is the first und iadical question. 
Wte utast first 'consider whether a second libeV 
Cttkf fi^ served while a former is ii) dependence, 
9Bad alleir this panel has pleaded guilty or not 

grilty to fit. Now, upon this poit^t I maintain' 
at there is no auUiority in the text-books, or 
itt the'plrecedetifs of this Court, for the propo- 
8itf6n'Udvaficed by Mr. Cranstoun. 

A^diiltitlldtioii has iiid^ed been tdken between 
di^cAseof aprisitynet'lulvxng pleaded to. the' 
fifst'iildictmeut^ and his not bavng as yet been 
oHUM U)^ to-ple^ ; and4t is* true that many ' 
of th^ decided cases which have been noticeo, 
reftr only tb'the c^uie of the panel not having* 
pleaded. T^e case of I^wson in 1785 — of 
Bttms' aita'Veitch in it^— of Betiy and 
Bbb^rtMi^'aiid CaUendar in 1793^-of iScott in 
1794^-^ Lindsay Crawfurd and Bradley in 
18ft ; tlie older c^ues of Nfcolson in 1711, and 
In|^lisin'l7!20,iWtBre all of thenr cases in which 
tUejMUt^l had not pleaded to the indictment; 
aUdj in such cases-, it is admitted by the priso- 
ners^ cotkisel in the Argument which we have 
htofd. that a se^onld indictment may be 
•A*vea.' 

Bttt'ImUst-VentilTe to dt4te that there is in 
pribcipleno room for the tltstinction between 
the tase of- a prisoner having pleaded, and his 
nbtlnlving plet^ded to th^ indictment, in so far 
a^^oocehis the right of the public prosecutor - 
Uf sertea eecond indictment upon him. If 
tlkttf Was room for this distinction, the diet ' 
eiMildltever1>e deltert^ after the ))riAoner had 
pleads to theindictm^tit, and' an tnteiiotutor 
onr the rele vancnr had 1)een pronoubced ;' — the 
prtMiler wdoM haVe a jur qudaxtmn in the pro- 
ceeding8--^he Would be Entitled to say that the 
CduH bas no ^wet to desert the diet. This 
pdhit 'Was most aUy -argued in ' the case of ' 
AjChibfldd; in iTdV whibh is reported in 
Irlitoirin^ 'caM; Th^rie wai mucH learning 
4ii^^ititMiargQtt(eaft; aiid ^i&irepon of 



TrM qfWUUtM Sctgaf 



C3I68 



tUcf cstke has ali^isted me iii forming my opinion 
oil the question now before us. it was con- 
tended in the case of Archibald, that the panel 
having pleaded to thie indictment, and an in* 
terlo^utof of relevancy having been pronounced, 
the diet could not be deserted. But, in the 
face of this plea, it was found by the Court 
that the public prosecutor had a right to c^ 
upon the Court to desert the diet, and they did 
desert aticordinglv. 

llie truth is, tii^t it is incorrect to speak of 
joining issue or' of litiscontestation in criminal 
matters ; the reason is, that there is no room 
for' the contract upo£ wbich, in civil causes, 
litiscontestation proceeds. The diel may be 
deserted at any stage of the procedure until the 
assise is 9et, "We have now^'' (says Mr. Hume, 
wben treating of this subject, vol.' ii. p. 86.) 
" advanced to that period of a criminal process, 
when it assumes a new shape, and is in several 
respects lAaterially alteredjin its nature by the 
naming and swearing, or, as we call it, tetting 
of the a^ize of fifteen persons, who are to pass 
on the trial of the prisokier. In particular, thai 
step is attended with this change in the con- 
dition of the process,' that, the prosecutor no 
longer has it m his power for any reason to 
obtain a desertion of the diet, but must let his 
interest take its fkte with the libel. Until then, 
and even afte^ interlocutor of relevancy, the 
prosecutor, on good cause shewn for it, may 
still be allowed to desert the instance pro loco 
et tempore^ and save his right of insisting anew, 
at a more convenient time and on another. in* 
dictment," &c. 

Accordingly, webave a number of authorities 
for the proposition that the public prosecutor 
may, before the assize is set, desert the diet, 
and serve a second indictment on the panel. 
We have thewbote cases of Hamilton in 1714, 
of Femie in 1720; the case of Mendham iu 
1804, of Somerville in 1813; of .Horn in 1813* 
and of Bell and Douglas in 1817. There are 
these six cases at different periods in the 
practice of this Coort, in whi<:h a second 
indictment has been served before the first was 
disposed of. It has been suggested, that 
the Court proceeded incautiously in allow- 
ing the second trial to proceed before the first 
indictment was disposed of. I shall speak to 
that point afterwards. At present I am con- 
sidering whether the second indictment was 
regularly served ; and the cases now referred 
to are invincible authorities to show that a se- 
cond indictment may be served while a first is 
undisposed of. If this were a nullity and in- 
competent, is it possible to suppose that the 
poutt would haVe allowed the trial on the se- 
cond indictment to proceed? The cases now 
menfioned leave my mind without a shadow of 
doubt, that a second indjctmetit for the same 
crime may be seHed while a former one is not 
disposed' of and hsl^ been pleaded to. 

There was an attempt made to raise an ar- 
gument against this proposition, on the circum- 
stance that the diet cannot be deserted without 
tbe leave of thti C6un i and it was said the 



3001 



cfiiwd wnff Jervsed, he m» qiiil of ^e .^» 



second indictmeiit oqght jDOt to .b9 xenredy 
pending the first, l)ecuse the indudd are p,yen 
to enable the panel to prepai;e l^s defences^ 
and be cannot prepai;e himself when bj^ ijp un- 
ceriidn which of two charges be is .to meet. 
This, howeTer, is merely an equitable plea 
against going to trial on the pai^icular day, and 
is just one of those pleas wbusb must be left to 
the discretion of the Cour^ A panel comes 
forward, au<) states that be fs harassed by the 
depending of two indictments, and theriefgre he 
moTes the Court that the trial should be de- 
layed. This do^ i^ot prore tliat the service of 
the second indictment was l^guUr^ and a 
midlity ; but it may be a good jea^on for grants 
ing delay. 

Here, tbeo, I bottom my opipioo. My fun- 
damental proposition js, that a secopd indict- 
ment may be served labile the first is not dis- 
posed of, apd has been pleaded to. 

The second link in the argument is, that if 
the service of the indictment vas r^gult^r, then 
the mthKut of fifteen days must run from the 
date of thf^ service. The i^ucU cannot ran 
from the abandonment or desertiou of the first 
libel. There is no period known to me from 
which the iwbuia can run but from th^ period 
of service. 

The second indictment, then, was^ regularly 
aerved. and the Mudarun fibm that data. 

In the next proposition a)l are a^r^ ed, yiz. 
Oat no person can be made to answer upon 
more than one indictn^ent ipr the s^e o0enc^. 
Tbe question then comes to turn upop this 
single pointy Whether ii is i^ecessan^ in ooint 
of form for (he Cour^ to desj^rt the diet ot the 
first indictment? or whether it ^all be held 
as virtually abandoned hy tb^ mere service of 
a second indictment ? This is th,e only ques- 
tion before the Courtly Whether iippu a p^nel 
coming here uTith twp indictn^ents, both regu- 
larly served , is it necessary, in point of fprm^ to 
desert the first by an interlocutor of Court ; or 
whether is it aljready virtually ajbandone^ ^y 
the sctr^ice qf thp secvn^ • V»Q i^hole qiieir 
tkm ^ines to.tl^« and th^ opinbi^ t givi^ up^ 
it, after looKii)g to the precedeutSi im that it la 
more regular, to desert formally when, the pond 
dwresii» 

I am aware that the doctrine of virtual 
ab^n^QQxpout ha^ be^ acted upon in mai^y 
cs^.' But In none of these cases was it exr 
plipUy brought; nndej^ the notice of the court, 
except in the o^se of SomfrvjUey apd in that 
c^ qp objection to it wa9 taken by' the panet 
It ibest tberefqre, appear to met that when it 
is, serio^s^y p^ecf«4 % a prisoneiv aaia the; 
pr^ipt^i^js, ^t a ^t indictment is hanging^ 
over tusbi^iiDl, if» should desire a mimit^, rrom 
tlMprV^Vtb^ p^^siug fioii^th^ first indiptm^t, 
aaJTilhavi^ p(^^9jajqce a(gii)€f lo^itpr deserting, 

Ajt.t^f same tippteU iff l4«W tbs^ ^ Mpel 
cm^ nojl^ svfij^r any ivjurj;, from the vfrfm^ 
aban^oi^^'e^; l>eca.use,tbp proseciitor,by exe* 
cttting a second, means to abandon Uie first. 
Tbe panel, too, knew, that the moment a se- 



Knowinff thi^, he was.ftee ipofi^ a^ Pdrplapi^ 
arising ttom « double -plfwi* TttAvetoiw 4m 
is a great deal of ^q^y m i^e dflct^li^ tkii 
the first indicUnent'nuls]^ jiirs, by the serving 
of asecond for iha saaie £iioi/9» ^44 1 iwtA 
not be for altering this piFtatios ^ban 4|it. 
pan/el makes no plyection. ^i when the -paiMA 
comes and states tha^ tl^ere is a fint indleu 
ment hanging over him, and dMias i^ ^lOiM 
be given up. ti)e Court should deela^e k f|a«> 
serted, and taen the pigiel should go t* ttfM 
on the seeopd indictment. The rospik isi tfipl 
the trial proceeds upon the veiy day to whWi 
the wducta ran. On Moodajr last me hfA W9tf 
thin| to do in this case but to declpjw thai ^ 
first indictm^t was at an end ; aad iho aacvo^* 
being regular, and the imfueU bavnig nm, im 
miglu have proceeded to the trial, wr wgh* 
have given a delay if asked for, and igpon oaait. 
shewn for the indulgencs. 

Lord BestoJt.-r-The judges who Iw^wm^ 
before me have anticipated the gvounds or ai|r 
opinion. I am not ashamed to C9ilflM 4lil I 
have altered mj opiaion.. There aaa |v^ qtaa^ 
tions to be decid»d. One iM, wh^lhiF utt «!•> 
entitled to take into consideration Iha lacosid 
indictment till the first is express](y abiMloQra4» 
And the second is whether the samea of tte. 
second is to be ooasideced a serviea. at mM^ aft. 
the first vfaa not expressly abaadooed. I ott»f 
fes^ ihat on tbe last day. I was of opinio* ilM 
both thfese points should be decided iq fiavoo^. 
of the paneV— that the authority of A^CowMt 
^aa necessai^ — and that the fonnar aernM^ 
befon^ authority was obiatned to th» ab^iwhwr 
ing the first indictment w^ uot a mod OM. 
But, uppn considering thesulMect furthefv I 
think I was wrong, in p^ m tAl|t opiuPB^ l 
think the prosecutos h^ np right to ppsp- fiMpik 
his libel, to the affect U making m 4oiind«r« a. 
n^yr one, without the authoritjy of tiia Copat 
Aft^r a firijt iqdktmei^ ha^ baan pltadiidi tp^ 
tha authf^nty of t)i% Couj^ 4uHi)d htthtA fo^it8L 
abandonm^tf 

Th^. more! ifipo^^t qu^atioi^ MMaiae^ 
whetherthq. ^arnce o^ thf. a^Mpd*. diwwgv 
the pendancy of the firat» is a nnUUy on n 
good serace. I aia quite cUari. ifom the. 
precedepu; wbioh nm bean s|at^ h(jp mjp- 
brethrep, thai th^ pr^^ ser^aa ia % g^odi 
service. The papers. cppuMl ha(va^ adaaitted^ 
th%t il the pan^l had iHMl^pi^adady this s af f i— »., 
wasa^goodsemcew Now,. I cimh)o( aaawbai^' 
differaoce can tie mi^ bjf hif- ptDiHNlMiiiP' 
the w^s '* Ndt Guilty.'' If litisqoalsatMtiAiii 
were to gq ip^<^ accouj^ itwpal^ b^.tbft jnai* 
pgp^Uing 4lf the. jury wfaafh^WMa to.cqnstllPllP: 
lU" Before, the jury. is. swons aA4> altar ikm 
pai\^ has plea4o4 not, guitty, aU.objaotiPMi 
are op^nt^ him, i^it niuei^y.pi?UmPtX7.obi. 
jectiops. tQcitati99»&p«: h^-mai^ state Qhjao*. 
tiom, to thf releiran^, of the libel* 0« tb«> 
other hand, the pros^jcntor is, npti precloded: 
from getting the diet deserted fro^looo^ePHitht- 
pqre, any moir^thamiC D04)lfadu«h«A>lriM' 



971T ^ GEORGE lU. 

place. The legal induda mu^it ruo /rom the 
aervice of the second iDdictment. But the 
Omrt will never refuse any equitable delay 
which may be asked by the panel. 

LordJvrtieeClerk, — I concur in opinion with all 
of your lordships, that when objections are taken 
imd answered in the anxious manner adopted 
in the present case, with regard to a matter of 
form and practice in our procedure, we ought 
to take every means of information, and decide 
with deliberation ; and so far from regretting 
the time which has been spent in this discus- 
sion, I have to express my satisfaction, that 
on the former occasion we adopted the course 
which was followed of ordering a search into 
the practice of the Court. But, now that we 
have the result of that search before us, we 
sire called upon to say, whether the public 
prosecutor, having, during the dependence of 
an indictment which has been pleaded to, and 
upon the releyancy. of which Informations 

. w«re ordered, executed a new indictment, is 
entitled to proceed upon it against the panel. 
I concur with my learned brother on my right 
hand, that this is the fundamental and preli- 
minary question, and that' upon it it is neces- 
sary to form our opinions m deciding this 

' case. But after the very clear and luminous 
statement from the learned judge to whom I 
allude, I should be guilty of undue encroach- 
ment upon your lordships* time if I were to 
enter into a detail of the grounds of my opi- 
nion as to that preliminary objection. I shall 
only say in one word, therefore, that upon a 
careful consideration of tlie argument upon the 

finciple and train of practice now before us, 
have formed a clear, and will venture to say, 
ui unalterable opinion, that there is nothing 
in the law or practice of this Court to prevent 
. a public prosecutor from serving a second in- 
dictment during the dependence of a prior 
one ; and that when the legal period of inducia 
granted by custom to a panel has expired, the 
prosecutor may proceed upon that indictment. 
As to what he is to do upon the second, that 
is a different question. But as to Uie power 
of serving a second indictment in such circum- 
stances, I do not entertain a shadow of doubt. 
It seems completely conceded by the learned 
counsel for the prisoner, that such has been 
the practice, and a practice to which no objec- 
tion can be stated, where a panel has not 
pleaded to an indictment. It appears, how- 
ever to me, that the moment that concession 
is granted, there is nothing to hinder a second 
indictment being served in all cases. For we 
are brought to very narrow ground indeed, if 
the whole objection be, that the first indict- 
ment has been read and pleaded to ; as, after 
the most careful attention to the distinction 
t^en, I can find no authority whatever for it 
in law. I am of the opinion already delivered 
to your' lordships; that there is no foundation 
for assimilating what is called litiscontestation 
in this case, to what occurs in civil cases. 
That point', as far as it could apply, was ar- 



Trial of WilHam Edgar 



[272 



gued, and in reality decided against the panel,, 
in the case of Archibald. Your lordships see, 
from the report in Maclaurin, that the Court 
had every thing before them that could be 
urged as to litiscontestation precluding the de- 
sertion of diet, and the service of another in- 
dictment ; but the decision there went in fact 
on the ground that there was no litiscontesta- 
tion in the sense in which it occurs in civil 
cases ; and, at all events, that it could only 
take place where an indictment has been re- 
mitted to the knowledge of an assize. If, there- 
fore, the public prosecutor may raise a second 
indictment, and proceed upon it at the end of 
the mducMf it removes the only difficulty 
which occurs in this case, and the only solid ' 
argument stated in support of the objection. 
For I am clear that no prejudice could arise 
to the panel by the procedure objected to. 

There is one view of this subject to which I 
beg your lordships' attention. Suppose the 
iniicis of a new indictment raised in this case 
had run to the 20th of May, the diet of the 
former having been continued till the 19th, it 
is perfectly clear, that if there had been no 
meeting of Court on the latter day, the instance 
on the former indictment would have been ex- 
tinguished, and no proceeding could have taken 
place upon it, ana nothing would have been 
required to be entered upon your lordships^ 
record. On the 20th of May, however, his 
majesty's advocate would be entitled to move 
the Court to take up the indictment, the in- 
ducig of which had run, and the diet must of 
course have been called. Now, could it have 
been said there was any thing of the na» 
ture of litiscontestation, or that the panel had 
a jitt gtuesUum which could have required the 
interference of your lordships ? There is no 
authority fbr requiring it to be shown that the 
instance has been extinguished, and therefore 
to that extent the public prosecutor must be 
held to have abandoned his charge without 
the necessit)^ of applying to your lordships. 
Your lordships neither have nor would have 
given the slightest impediment to that pro- 
ceeding, but must have taken up the second 
indictment, and have held that with regard to 
the former indictment there was an end of the 
case. 

Bat it was said, where the diets happen to 
fall on the same day the case is altered, and 
your lordships are called upon to adopt a pro- 
ceeding which the panel says may be favour- 
able to him. If any ground were to be made 
out for supposing that a panel could be re« 
p^arded as standing in the situation Charteris 
IS said to have been placed ya^ then your lord- 
ships by your authority would afford a remedy 
for any such hardship. If you saw the public 
prosecutor (which I cannot suppose possible) 
attemptinj^ to. harass a . panel by raising 
against him a number of indictments in sue* 
cession, and leaving him doubtful upon which 
he was to be tried, — or take the supposition of 
several new ones being raised after nis plead- 
ing to the first, you would exe'rcise that power 



2731 



Jin AditMUXermg untaK/kl Oatht, 



A. D. J8t7. 



1274 



irith ^hich you are entriisted for Che good of 
the coantry, and afford immediatci relief. But 
ify on the other hand, yoor lordships hold, as I 
doy that after service of a second indictment, 
both being regular, the {mblic prosecator has 
thereby declared, that it is upon the second, and 
that alone, he means to proceed, and is not 
entitled afterwards to turn round and say he 
"Will go back to the first, there is not only no 
iojoiy which can arise to. the accused, but he 
has a greater advantage than he oonld have 
vpon the rule of law he now contends for, of 
both indictments being held to subsist, and 
tiMft your lordships should interfere to hare the 
•desertion of the nrst recorded. 

The case of Charteris, I think, has not been 
looked to with so narrow an eye as is proper. 
It appears from Mr. Hume, that Charteris liad 
lour indictments served upon him, and that he 
put in a printed petition stating the hardship 
of hSs case, before he was brought into Court 
for trial, praying for the authority of the Court 
to »ll upon the lord advocate to declare 
what was the course he meant to follow, and 
upon which indictment he meant to allege the 
coilt of the prisoner. The answer was made 
by the public prosecutor as to the one upon 
which he meant to rest, and it was after that 
tbat the trial proceeded,* and the Court de- 
clared the others abandoned. The diet of 
jBone of them appeals to have arrived. But if 
any such proceeding as this was to be attempt- 
edy your lordships would reauire no statute, no 
recourse to books, but only the dictates of 
your own consciences to know what you should 
do, as I have not a shadow of doubt in my 
mind, that a public prosecutor is not entitled 
to vacillate between his different charges, 
but tbat the service of a second must preclude 
him from going back to his first. 

With regard to the practice, I am bound to 
say with your lordshipis, that when it is looked 
narrowly into, it does not appear to me to rest 
upon so clear and indisputable a basis as that 
it would be right for your lordships to adopt 
it at once as the rule of the Court. It was a 
fair observation, that in some cases a panel 
might wish to wave this or oiher objections ; 
and in the case of Somerville I see an obvious 
ground upon which he wished to go to trial ; 
as the second* indictment being cleared of the 
objection stated to the first, he had. no object 
to ask for fifteen days more. He had no pal* 
pable or tangible interest in vieyi^, his witnesses 
being present, and he might have suffered pre- 
judice if delay had taken place. Mr. Clerk 
said he would have moved for delay on ac- 
count of the absence of four witnesses at the 
first trial, but they were present at the last. 
He mowedf however, for what wis a siv>jftan- 
tiat interest; namely, the expenses of the first 
indictment, but did not notice the prcjprietjp 
of doing away with it on the record i and 
there was an opinion c^ven, that the question 
of expenses should be delayed till the issue of 
.the second trial. I am clear, therefore, there 
'was no interest in that case to insist upon the 

VOL. XXXIII. 



objection, which would have merely led to a 
fortnight's delay. This same consideration 
may apply to other cases, and it is better to 
follow the straight forward course, without 
eu tangling ourselves with former doubtful cases 
not precisely in point. 

Having formed a clear opinion^ that there is 
no principle, authority, or dictum, to induce 
us to think that tlie inducus had not run . from 
the period of service, merely from the circum- 
stance of the two diets having occurred on the 
same day ; I am for following that course as 
to which we have so clear an example in the 
conduct of a lawyer of tlie first eminence, I 
mean Mr. Duncan Forbes, who expressly con- 
sented that the diet should be deserted with- 
out prejudice to his right to insist on the new 
indictment which he had raised. - 

Although I have a clear opinion that the 
(nducUs here run from the date of service, in 
this and in every other case, if a person accus- 
ed should state to the Court reasonable grounds 
for delay, I would attend to them. I am now 
only giving my opinion upon the law. 

The Court then paoMouvcEo the fol- 
lowing INTERLOCUTOa : — 

** The Lord Justice Clerk and Lords- 
Commissioners of Justicary having resum* 
ed consideration of the objection stated in 
bar of trial at last sederunt, with the an- 
swer thereto, minutes of search as to the 
practice in similar cases given in in 
obedience to the order of Court, and 
heard parties procurators further: Find 
that the service of the second indictment 
during the currency of the first indictment 
was competent ; but in respect that his 
majesty's advocate has judicially declared 
that he has abandoned the Hrst indictment, 
desert the diet of that indictment without 
prejudice to the Prosecutor insisting 
against the panel on the second indict- 
ment as accords : Find that the service of 
the second indictment upon the panel on 
the third day of May current, being fifteen 
free days before the day of compearance, 
gave him the benefit of the . legal inducia 
and • therefore repel the objection on that 
plea, and ordain the panel to plead to the 
second indictment." 

(Signed) **D. Boyle,! P. D.'» 

Lard Justice Clerk. — William £dgar, are yea 
guilty or not guilty ? 

William Edgar, — Not guilty. 

Mr. C2^.— I hope you will permit me to 
say, that ^o much of our time and attention 
having beei/ already occupied, it would be 
extremely hard upon us to proceed now to 
argue the relevancy, upon which we have a 
great ,many consid[erations to offer. I need 
not suggest a particular time for your lordships, 
I do iiot think it would be proper to . attempt 
any encroachment upon your lordships. I think 
you cannot go on with the trial before Monday 
next. 

T 



57 GEORGE UI. 



C751 

*<The Lord Jiiitice Qerk and Lords 

Commissioners of Justiciary contmufs 
the diet against William £affar> panel* 
till Monday next at ten o*clodk forenoon 
in this place, and ordain paities, witnesses, 
and assizers, and all cgncemed^ then to 
attend> each under the pains of law, and 



frMffAndrmM^Onl^ 



(876 






the panel in the vi^ tiig^ te be tul^ 
from the ba^ l)%c|(> tp the C9>4e of ** *' 
hurgh." 



[See tbf lifgfX €99^] 



700. Proceedings in the High Court of Justici^y »t Edinburgh, 
on two successive Indictments, raised by hi3 Mso^ty'a 
Advocate, against Andrew M*Kinley, for administer- 
ing unlawful Oaths, June 9nd — July 19th : 57 Geo. IIL 
A.D. 1817.* 



COURT OF JUSTICIARY. 
JuHE 2y 1817. 

Rt Hon. DaM Boyle, Lord Justice Cleric. 
Lord Hermand, 
Lord GUUa. 
Lord Pi(m%. 
Lord RuUm, 

Omnfeljarikfi Crtmm. 

Rt Hon. Alexander Maamockk of Meadow- 
banky His Majesty*s Advoeate f afterwards a 
lord of Session and Justiciaiyy with the title 
of Lord MeadowVank.J 

James Wedderhum^ Esq. Solicitor-General. 

If . flome DnawNonrf, Esq. Advooate-Depute. 

Comtelfor the Pwnd. 

John Clerk, Esq. 
Geo. Cnautotm^ Esq. 
Tho, T^kNRKm, Esq. 
Frandt Jefrev, Esq. 
J. P. Grants Esq. 
J. A, Murray^ Esq. 
Jomef Momrieff', Esq. 
Hemy CoMum^ Esq. 

Lurd A4voaUe. — Before your lordsbips call 
this diet, I have to state to the Court, that, upon 
the 90th of March last, the panel was served 
with an indictment to stand trial upon the 5th 
9i April. To that indictment he was never 
caUea upon to plead, and a new libel was 
afterwaras raised against him, the diet of which 
weas continued on different oc^^ions. 

The first of these indictments I have aban- 
doned ; and though, according to my own un- 
derstanding of the import of the precedents 
xrhich have been laid before the Court in the 
case of Edgar, f there is no occasion ibr enter- 
ing this on therecord/yeti^have no objec- 
tions to this being done, if it be desired. 



i«M«* 



* See the preceding case. 
t.See the preceding casb. 



Lord JutHce Clerh^Y<mr lordships wi)l just 
make a simiUr order here to that m^e in t|e 
case of Edgair. 

The (bUowtng entry was thai naade 
npon the record : — 

** The Lord Justioe Clerfc and Loidi 
Commissioners of Jnstieiary, in respect of 
ndiat is above represented, desert the diet 
of the first ittdictment against the said 
Andrew M^Kinky, reserving to his M»> 
jest's Advocate to insist upon the saooad 
indictment, as accords." 

loftf Juitice Cferfc.^Andrew M^Klnlejr, 
attend to the indictment against you wluch » 
now to be read. 

''Andrew M'Kinley, present prisoner 
in the Castle of Edinbnrgh, yon are 
indicted and accused, at the instance of 
Alexander Maconochie of Meadowbank his 
imesty*s advocate, for his miyesty's in- 
. terest : That albeit, by an act passed in 
the flfty-eecond year of his present ma- 
jesty's reign, intituled, 'An act to render 
more effectual an act passed in the 
thirty-seventh year of his present majesty, 
for preventing the administering or takiiy 
unlawful oaths,' it is inter oIm enacted, 
''That every person who shall, in any man- 
ner or form whatsoever, administer, or 
GSEUse to be administered, or be aiding or 
assisting at the administering of an oath 
or engagement, purporting or intoiding 
to bind the person taking the saqie to 
commit any treason or murder, or any 
felony punishable by law with deatl^ 
shall, on conviction thereof by due course 
of law, be adjudged guilty of felony, and 
suffer death as a felon, withoot benefit of 
clergy. And further, by section fonrth 
of the said act, it is enacted, 'Tha)i persona 
aiding and assisting at the administering of 
any such oath or engagement, as aiforesaid, 
or persons causing any such oath or evir 
gagement to be admitilstered, though not 

S resent at the adminiitering UiereoC MfjL 
e deemed principal offmdto, and shall 



«7TJ 



fat Admhuimkg mUantfii Oathi. 



A. D. 1817. 



[aro 



be tited Itttbch; ijo^, on oonviiSfioB there- 
of hj due ctmrM of bw, sMt be adjudged 
gailfJrtfffetony.aAd sball suffer death as 
nrioos^ wii^otii btfoefit of d ei fr ; altlioagb 
Ui# penond or person who actually admi- 
nitteted snch oath or engagement, if any 
sueh there shall be, shall not have been 
triftd Of convicted." And further, by 
AUkm afatth of the said act, it is enacted, 
''That any engagement or obligation 
^atsoever, in the nature of an oath, 
prnpordng or intending to bind the per- 
aoD tsA(iog the same to commit any 
Unnao n or murder, or any fblony punish- 
able by Unr with death, shall be ^med 
an oath wilhia the intent and meaning of 
thin acc^ in wbaterev fdrm or manner 
the name shall be administered or taken^ 
and whether tie same shall be actually 
administered by any person or per- 
sons to any other person or persons, or 
tsften by any other person or persons, 
witbovt any adniiuistratlon thereof hj 
any other person or penkms:" Yti trite tt 
y/wd rf veriijfg that yon the said Andrew 
mUalay are guilty of the said crimes, 
^cr of one or more of thtth, abtof, ot art 
Iftd pari : In so pae as l^f the said 
Aniitw M'Kinley did, at sacret meetings, 
and on other occasions^ at Gla9g6W, and 
in ttw Tidni^ thereof in the course of 
Ike momlis of November and December, 
1816y mtid January and Pebtuaiy, 1817, 
wkkedly, maliciously, and traitorously ad- 
ttiilister, or cause to be administers, or 
did aid or assiit at the administering, to a 
peac mmiber of pet«ons> to the amount 
of a nw ifti i' hmfdt«chl^ an daCh or engage- 
or asi o^igatibn in the nature c^ an 
r, binding, or purporting of intending 
bJM, the persons taking the same to 
it ttfeaMofty whieh oath, engagement, 
or oblikatiofi, wa# in the flowing tetms, 
or to ue following purport : — ** in awful 
pieseoce of God, I^ A B^ do voluntarily 
swear, that I will persevere in my en- 
deavonring to form a brotherhood of 
affection amongst Britons of every de- 
•emtiom, who are' considered worthy of 
oonftdence ; and that I will pelsevere in 
niy endnavoms to obtalft Ibr all tfav peo^ 
pla in GMaft> Britain and Ireland^ not dis- 
mmliflwl bjr citmes or ineanvty; tbede6> 
live franchao^ at th^ age of twenty-one. 
wf dr frew- nnd^ •e^fiad rspiesentalion^ and 
annual parliaments ; and that I will sup- 
port ifan sane to the utmost of my p6Wer, 
eilfaer by moial or physical strength, as 
^t» one BM^r^niret And I- do unrther 
swear, that neither hopes, fears^ rewards, 
or pnniriMDonts^ shall indnoe me to^ in^ 
aMU' on^ Of ' giw- evidenoa'' s^gatns^" anjp 
member or neabers, colleotivdy or indi- 
vtiadl^, §af any act or eapteision. done 
m'Wtmf m ^er o«t^ in this' or simtiar so* 
eiaiidis; ^Buim dv punishuiettt of deaths 
to be iniicted^oviiNrby anymenberor 



members of such sodeties. Slo help me 
God, and keep me stedfast:" — ^Wbich 
oath, or engagement, or obiication, to the 
fcv^gning puroort, did bind, or did pnr- 
piprt or intend to bind, the persons taaing 
the same to commit treason, by effecting, 
by pb^ical force, the subversion of the 
estfliblisbed government, laws, and consti- 
tution of this kingdom, and especially by 
obtaining annual partiaments and univer- 
sal suffrage by unlawful and violent means. 
Aim, MoaE PAHTiGULABLT, (1 .) at a se- 
cret meetins held at the hoase of Hugh 
Dickson, then weaver in Abercromby 
sti^eet, or CaHon of Glasgow, or elsewhere 
at Glasgow, or in the immediate vicinity 
thereof, you the said Andrew M'KJnley 
did, upon die SOth di^ of December, 
18t6, or upon one or other cf die days of 
tlAt month, or of November immediately 
nreceding, or of January imuMdiately 
following, wickedly, maliciously, and trai- 
torously administer, or Cadsif to ha admi- 
nistered, or did aid or assist at the admi- 
nistering an oalh, or engagemenfti of ob- 
ligation, in the teims abo^ set AMi, or 
to the same purport, to Petek* Oibton. 
John M^Lanehlane, John Cam||ieU, and 
Hugh Dickson, all present prisoners in 
the Castle of Editfbnrgfa, or to one or 
other of them, and to other persons, 
whoee names are to the prosecutor un- 
known, the said oath, or eng^^ement, or 
obligation, to the said purport, binding 
the persons taking the lame to commit 
treason, as said is. Awn, FuaTRsa, (2.) 
yon the said Andrew M^Kinley did^ Upon 
the 1st day of Januarv, 1817, or on 'one 
or other or the dajrs of that month, or of 
November ov^DccemberinMiediaiely pre- 
ceding, at a seeret meotingvMd in the 
house of Williamr Leggat, <4umga4ceiper. 
King street, Tradestown, in the* vicinity 
of Glasgow, or elsewhere at Glasgow, or 
in the vicinity thereof, wickedly,' ma- 
licio^y, and traitorously admimMr^ or 
oanle to be administerea,' or did aid or 
assist at the administering^ an- oath or 
engagement, or obligation, in the^ tdrms 
above set ftnth, or to the same purport, 
to the said Peter Gibeon^ John M'LaUch- 
lane, John Campbell, and Hugh Dick- 
son ; as also, to James* M*£wan^ n&m or 
lately carding-master at* Humphrie's 'Mill, 
Gorbals of Glasgow, and M'Dowall Bate, 
or Peat, now or totely weaver ih Piccadilly 
street, Anderstoa, in the vicinity of Glas- 
gow, who, conscious of their guHt inr the 
premises, have al»ooaded and fled from 
justice; as also^ to John Conneltoh^ or 
Congleton, now or lately cotton^inner 
in Calton of Gtesgow, or to one or other 
of them, and to other persons^ whose 
nataes are to the prosecutor unknown, the 
said oath, or engagement, or obligation, 
to the said purport, binding the persons 
taking the inme to commit tieasoni-as' ' ' 



a793 



57 GEOROE III. 



2'rial qfjijidrew M^KiviUy 



[28a 



ii. - And, fuathek, (3.) you. the said 
Andrew M^Kialey did, upon the 4th day 
of January y 1817, or on one or other of 
the days of that month, or of November 
or December immediately preceding, at a 
secret meeting, held in the house of Neill 
Munn, innkeeper and stabler, in Ingram 
street, Glasgow, or elsewhere at Glasgow, 
or in the vicinity thereof, wickedly, mali- 
ciously^ and traitorously administer, or 
cause to ,be administered, or did aid or 
assist at the administering, an oath, or 
engagement, or obligation, in the terms 
above set forth, or to the same purport, 
to the said Peter Gibson, John M'Lauch- 
lane, John Campbell, Hugh Dickson, 
M*Dowall Pate, or Peat, and James 
M'Ewan ; as also, to James Hood and \ 
John Keith, both present prisoners in the ' 
Castle of Edinburgh, Andrew Soraerville, I 
John Buchanan, and James Robertson, I 
all now or lately prisoners in the tol- ; 
booth of Glasgow, or to one or other of 
them, and to other persons whose names 
are to the prosecutor unknown, the said 
oath, or engagement, or obligation, to the 
said purport, bii^ding the persons so 
taking the same to commit treason, as 
said IS. And, fubtheii, you the said 
Andrew M'Kinley did, upon the 5th day 
of February, 1817, or on one or other of 
the days of that month, or of January im- 
mediately preceding, at a secret meeting, 
held at the house of John Robertson, 
innkeeper apd stabler ia Gallowgate of 
Glasgow, or elsewhere at Glasgow, or in '• 
the immediate vicinity thereof, wickedly, • 
maliciously, and traitorously administer, | 
or cause to be administered, or did aid , 
or asnst at the administering, an oath, or ! 
eagagementy or obligation, in the terms ' 
above set forth, or to the same purport, to ' 
the said James Hood, James Robertson, < 
Andrew Sommerville, and John Buchanan, 
as also to James Finlayson, present pri- 
soDer in the Castle of Edinburgh, or to 
one or other of tbem, and to other persons, 
whose names are to the prosecutor un- 
known, . the said oath, or engagement, or 
obligation, to the same purport, binding 
<he persons taking the same to commit 
treason, as said is. ' And you the said 
Andrew M'Kinley having been present 
at a secret meeting, held for the purpose 
of administering, or causing to be aa mi- 
nistered, the said oath or engagement, or 
other purposes to the prosecutor unknown, 
at the house of Alexander Hunter, change- 
keeper in the Old Wynd of.Glasgow, on 
the 22nd day of February, .1817, and 
having been there apprehended, conscious 
of your guilt in the premises, did assume 
the ialsename of John Brotherstone; and 
httving been taken before Robert Hamil- 
ton, Esquire, Sheriff-depute of Lanark* 
shire, you did, in bis presence at Glas- 
gow, oo the 28th day of February, 1817, 



and on the 11th day of Maicb^ 1817, 
emit and subscribe two several declara^ 
tions; and having been taken before 
Daniel Hamilton, Esquire, one of the 
Sheriffs^ubstitute of Lanarkshire, you 
did, in his presence, at Glasgow, on the 
4th day of March, 1817, emit and sub- 
scribe a declaration ; and having been 
taken before Hu^h Kerr, Esquire, one of 
the Sherifis-substitute of Lanarkshire, you 
did, in his presence, at Glasgow, on the 
5th day of March, 1817, emit and sub- 
scribe a declaration; and having been 
taken before James Wilson, Esquire, 
Sheriffs-substitute of the county of Edin- 
burgh, you did, in his presence, at Edin- 
burgh, on the 18th day of March, 1817, 
emit and subscribe a declaration; — all 
which declarations, being to be used in evi- 
dence against you at your trial, will for that 
Surpose, be lodged in due time in the 
ands of the Clerk* of the High Court of 
Justiciary, before which you are to be 
tried, that you may have an opportunity 
of seeinff the same. At least, times and 
plapes K>resaid, the said oath or engage* 
ment, or an oath or engagement to the 
same purport, binding, or purporting to 
bind, the person taking the same to com- 
mit treason, as said is, was wickedly, ma^ 
liciously, and traitorously administered, 
or caused to be administered, and some 
person or persons did aid or assist at the 
administenng thereof; and you the said 
Andrew M'Kinley are guilty thereof, 
actor, or art and part. AU whi<^ or 
part thereof, being found proven by the 
verdict of an assise, before the Loid Jus- 
tice Genera], the Lord Justice Qerk, and 
Lords Commissioners, of Justiciary, yon 
the said Andrew M^Kinley ought to be 
punished with the JMuos of law, to deter 
others from cpmroitting the like crimes in 
all time coming. 

<<H. Home Drvmmokd, A. D." 

LIST OF WITNESSES. * 

1. Robert HamUton^ Esquire, sheriff-depute 

of Lanarkshire* 

2. Daniel Hamilton^ Esquire, one of the 

sheriffs-substitute of Lajiarkshire. 

3. Hugh Kerr, Esquire, one of the sberiffii- 

substitute of Lanarkshire. 

4. Jamei THomptonf clerk to John Drysdale, 

sheriff-clerk of Lanarkshire. 

5. .Matthew Btarm^ clerk to Geoiige Salmond, 

procurator-fiscal of Lanarkshire. 

6. Jvhn Letlky clerk to the said John Drya- 

dale. 
7* Joteph Body writen in Glasgow. 
. 8. Qeargjt Salmondj procurator-fiscal of La- 
narkshire. 
9. Jamei WiUon^ Esquire, one of the sberiffiH 
substitute 6f the county of Ediobnigb. 
10. Archibald Scottf procurator-fiscal of tbe 
county of Edinburgh. 



Sfil] 



>- 



Oatht. 



A. D. IJB17. 



^99 



OirrtB^ writer^ Sheriff-clerk's office, 
Edmbofffh. 
13. .AfeMDHier CaUpr, sheriffofficer in Glas* 
gow. 

13. Aluawler Hmter^ dnnge-keeper, Old 

Wynd of Glasgow. 

14. Mmiom I^Laren^ or iii^Laddan^ now or 

lately serfant to the said Alexander 
Hunter. 

15. Ji^M Rohertton^ inn-keeper and stabler,GaU 

lowgate Glasgow. 

16. Ag'it$ Cam^Mly wife of Thomas Dow, 

steam-boiler maker and smith at Gird- 
wood and Company's found yy in Hu^cfa- 
esontown, in the ?lcinity of Glasgow. 

IT. Jimet MaUtmlf now or lately sertant to 
Neill Munn, innkeeper and stabler in 
Jngram-streety Glasgow. 

18. AUton Wikon^ now or lately servant to the 
said Neill Munn. 

10. Matthew Fsfe, spirit-dealer in Wilson- 
stieet, Glasgow. 

20. Jem IBcjfd, wiie of the said Matthew Fyfe. 

31, WiUiam jLc^jgof, change-keeper, in King- 
street, comer of Centre-street, Trades* 
ton, in the .vicinity of Glasgow. 

S2. John MiteheUy weaver, residing in Wilkie*s 
Land, Charles-street, Calton of Glasgow. 

23. AwA Dichonf present prisoner in the 

Castle of Edinburgh. 

24. F^gter Qibwn^ present prisoner there. 

25. John AVIjacklime, present prisoner there. 

26. WUUam Sm^mnif present prisoner there. 

27. John CamfMl^ present prisoner there. 

28. Jmma Bioodf present prisoner there. 

H. HoM£ Drvmmokd, a. D. 

LIST OF ASSIZE. 

ComUif nf Edmburgh, 

Dmid Grmf of Snipe. 
Jolm Thammm of Bumhonse. 
Oturgi J^rty^ grocer in Dalkeith. 
J^ictaiW Mmchti^ merchant there. 
JflMS Mmit€r, farmer, Longside. 
Jmmt VUiUe^ farmer, Easter Cowden. 
DaM T/kwiatm, farmer^ Wester Cowden. 

County of Haddington. 

John Andanon of Whitheugh. 
Tkoma$ Mitchell of Westburn Mains. 
Charie$ Crawford^ farmer. East Fortune. 
Mark TwmbuU, fanner. Upper Bolton. 
Jmmee WUeon^ farmer, Bolton. 



Qnmty of Lmlithgow, 

WUUam Wiihe of Magdalens. 
WiUiam ShUUngjUno of Boghead. 
Andrew MUcheUy farmer at Kinneil Kene. 
John ftats^ farmer at Borrowstown. 
John Thornton^ farmer at Inveravon. 

CUy of Edknbargh. 

Bkhard Johmton^ banker in Edinburgh. 
Jame$ M^Kenzie^ goldsmith there. 
Behert Gfrean, watchmaker there. 
JloUrt jS<^i<(pr,4ye^utter there. 
William NeilioHi painter there. 



I Jomsf Ynle^ baker there. 
Andreio Grtenon, tailor there. 
Patrick Mainy painter there. 
John Laudery merchant there. 
Samuel HopperUmy grocer there. 
John Brcwriy merchant there. 
Robert Mitchell^ merchant there. 
William Lodchart, tinsmith there. 
John Sinclair^ seed-merchant there. 
William Scott, pewterer there. 
Alexander Johntton^ ironmonger there. 
George Gray, baker there. 
ThomoM Edmonttoney ironmonger there. 
WUUam Mttrray, baker there« 
John Smith, spirit-dealer there. 
Thomas Hunter, merchant there. 

ToumqfLeith. 

John Sharp, wine-merchant in Leith. 

Archibald ipDowaU, merchant there. 

Jamei Ojfihie, wine-merchant there. 

Robert Strachan, merchant there. 
I Robert Sandermm, cooper there, 
i Robert Brunton, mercnant there. 

John Colder, grocer there. 

D. BOTLB. 

An. GiLLiss. ' 

_ ' • « 

Gbo. FBEOtJSMiir^ 

Lord Juitice Clerk. -- Andrew M'Kinlef,; 
What do you say to this indictment ? Are yotf 
guilty or not guilty. 

Andrew 3iPKinley. — Not guilty. 

Lord Justice Clerk. — Have counsel any ob- 
jections to state to the relevancy of this indict-' 
meot ? 

Mr CrMSloim. — ^My lords, it will be in the 
recollection of vour lordships, that a person of 
the name of William Edgar* ^am lately in»* 
dieted at your bar, upon a charge pf having ad- 
ministered oaths binding the takers lo« commit 
treason, against the statute of the 52^ of. the 
king. He pleaded not guilty, and various ob- 
jections were stated to the relevancy of ^he 
indictment. Your lordships heard a debate 
upon the subject, and you appointed informal 
tions to be given in. But the public prosecutor 
deserted the diet of that indictment, and served 
him with a new one. 

The prisoner, Andrew M*Kinley,now at your 
bar,^ had been indicted in terms precisely the 
same vrith Edgar. That indictment has also 
been withdrawn, and a new one served, which 
you have now before you. 

Your lordships will recollect, that among the 
objections stated to the relevancy of Edgar*s 
indictment, it was pleaded, that it involved a 
charge of treason, and therefore was not cog- 
nizable in this form ;-^first, became the .charge 
of treason was not'Uud.in the major proposition 
•f the indi<;tment ; and,v again, because your 
lordships, proceeding according to the Spotnh 
form of trial> could not try that offence- without 
the intervention of a grand juiy, and without 



1 



* Sea the preof^ding case. 



J 



t8»j 



17 



III. 



tntd ^Andrim M*iaU^. 



Dm* 



aUowing the priMoer a pmlnplorjr diidll»Ei|^ 
of the arrayyand odl«r privileges cempe^etit by 
the law of England to persons vwler trial ft>r 
hidb treason. 

The indictment iR^idh your lordships have 
just heard read is tfi terms somewhat different 
from that in Edgar's case which has been with- 
drawn ; and, it is for your lordships now to 
consider, whether there are any objections that 
can be competently stated to the relevancy of 
the present indictment ; or rather, I should say, 
whether any one objection that could be com- 
petently Ststed to the lest indictment, may not 
also be stated here. 

Before I proceed to tftate what I conceive fo 
be various objections to the relevancy of this 
indictment, I must take the liberty to make 
one preliminary observation. It is this — ^tbat, 
in all criminal cases, where there is room for 
construction, every thing must be strictly inter- 
preted in fkvour of the acciisedi and against 
the prosecutor. I cannot make this observation 
without at once con^manding the assent of every 
body, for this has always been recognised as a 
sacred principle of law; but if we look at many 
trials at fcnner periods, both in our own and 
in the neighbouriag country, we shall find, that 
viMte tids maxim was admitted in words, it was 
denied in substaii<;et and fiiuered away by dis- 
^nctioBs and refinements that rendered it ni>- 
gatory, and at other times while admitted in 
Ukeory in its full extent, it was overiooked and 
forgotten in practice. It resembles those 
truths, in morels, which we repeat till they 
ceaae to have any influence on our conduct. 
Ibe uncertainty of human life, for instance, is 
always in our mouths, and we act as if we had 
a grant of K!b for a century. Thus there are 
maxims in law which become so fomiliar, that 
they, lose all their effect 

Permit me, therefore, not onlv to recal the 
maxim to your recoUeotion, but forgive me, if, 
in a few words, I enforce it. Because it ap- 
pears trivial, therefore I wish to insist upon it. 

The foundation of this maxim is obvious. 
X^en in the dispensation of commutative jus- 
tice, where there is a conflict between the patri- 
monial interests of individuals, you know, that, 
in commoil law, some cases receive a libeml, 
and others a strict interpretation. In some 
cases you control the words of a writing by 
equity ; and in others you take it according to 
flk^ strict' letter, though contra^ to the pre- 
sumed intention of parties. Why are these 
different rules of mterpretation adopted? 
Merely because one plea is fovourable and 
another the reverse ; because one, for example, 
hifors an inconvenient restriction on commerce, 
or the use of property, or one party is Imra 
eapianeb^ while the other is^tn min» vUumtb: 
On such slight grounds, 3F0tt hotd'youvsclve* 
entitled' to apply the one mode of eonstrudiotf 
or tiie other. 

If that be the eaee in civil matters, muoh moie 
must it be in those uibntalv whope jostloe^is 
called upon not to wield the balance but the 
swofd. Tiieiv, there' is^^ w> cottflict or oppo" 



sitlott between the inlMit oi iltt pM«Ees U 
the bar. If it is for the advantage of the 
prhwaer that there should be a striet fc rt er p i^*. 
tationin all cases, it is ten times mora for the 
itaterest of the puUic proeieutor, ev valier of 
the community which he ftpresemts. The ob- 
ject of punishment is losi^t becomes ^hl;^ 
pemielous if inflicted when a mend poasibility 
of innocence remains, either because the charge 
is ambiguously expressed, or Ae efvideine hi 
support of it is inconclusive. It is a sacred 
rale, that every one avenue shoidd be left opitf 
to which innocence may have oceasien to re- 
sort, thoujrti by it guilt may bu enabled to 
escape. &emmdmii0ti9hi§jufttAioketefttam 
per tii^urmn comiemmare ett imieim ; mmmUU 
error, m kocjbcmm. 

Accordingly, from the first dawn of juris- 
prudence, it will be found in every eriBsinal 
code. It forms part of the 15>5ih lam of the 
title de EeguHi JuriM. Inpoentdihm imm &e^ 
nignka mterpreUmdum — a treatise Whidi, I will 
venture to say, is the greaeest body oil oott^ 
eentrated wisdom on the sal^edt of jarispm* 
denee to be found in any uninspisei work. 

This role extends to the l»w or statute on 
which an accusatioa is laid—- to the iodietueiit 
on which the triid proceed»*-to the evidence 
led against the prisoaer-^lO' the veedict rt^ 
turned— and, above all, if tbo corpaf ddkH 
consists in the u^ring of words, it extends to 
the construction of those words. 

This principle of constnictiotft has been ao- 
Icnowleoged ^;ain and agaiuby tbelegiriaturei 
more particulariv in the law of treason, whid^ 
you are now called upon to administer; or, at 
least, which bears directljr upon the indict^ 
ment, the relevancy of wmcb you are now to 
try. You know mere was an act passed in 
England in the reign of EttabeUi against 
clipping or defacing Uie coin. It is the 5th ol 
Elizabeth, cap. 11, which prohibita die opo* 
rations of clipping, 4vashm^, rounding^ or 
filing. But that sutute was found not to. 
apply to any other mode of lessening the valnn. 
of the coin, though precisely the same ii| 
effect; and, acco^in^y, the statute of the 
18th of Elizabeth, cap. 1, waa made against 
impairing, diminishing, fal8iiVin|, scaling^ 
ano lightening, and it was made on this re^ 
markable preamble .w<» Because the said law,'* 
(5th Elisabeth) *^^ing penal, ought to bo- 
taken and expounded strictly according: to Uio 
words thereof and the like offences, not by 
an^ equity to receive the like punishment or 
pains.'' Here then is a declaration of the 
legislature itself, in a statute relative to high 
treasQtt^ enplaaiing the manner in iddth soeh^ 
statutes oughe to be^ construed. 

I mav likewise call your attention to wMe^ 
the author, fros^whom I.have borrowed this 
remark, has said upon the construction of 
penal 8lMMcs« Sir Wiffllam Blnchstanoobl 
serves, ^ Penal stamtes- senst to conslined- 
strictly. Thus the statute^ 1^ £di«sad> VE e^ 
13. having enacted tfan* tbosu "^Ato- k» oofr> 
victed of stealing ibr«is*'8lit(iUl^n9r bnee^tiia 



f»T AiftKMtUfing unhnefiil Ooiht. 



28|Sl 

benefit of clergy, tl^e jttdfes conceived that 
Ihia did not extend to him that diould ^eai bnt 
one kone, and the.rMof ft piocttred a new act 
fipjr thai parpofl# in tfce following yeac. And, 
to come nearer onr own times, by tbe statale 
14 Geo. II. c. 6., stealing sheep, or other caUie, 
was m«de felony vriilioQt benefit of clergy. 
Bat theso general words, " or other caule," 
heii^ looked npon as much too loose to create 
^ capital offence, the act was held to extend 
to nothing bnt mere sheep. And, therefore, 
in the next sessions, it was found necessary to 
O^ake another statute 15 Geo. 11. c. 84., ex- 
tending the former to halls, cows, oxen, steers, 
buUocks, heifers, calves, and lambs, by nane/^ 

Thos, yonr lordships will observe, that even 
idpeie words wMBeiently impropriate in th^r 
oidiiiaiy sense were e^^>loyed, yet if it was 
poMible to take the offender out of the opersr 
tm of the sftataHi by any com^rnction however 
rigorous, that construction, though not con* 
spstent with the probable, I may say the mani- 
C^t intention of the legislature, vfu allowed. 
(cannot five a more striking instance of the 
application of the rule which I am endeaTOur- 
ng to enforce^ than, this which is borrowed 
from tl^ law of England. I shall afterwards 
caU yoor attention to some detecminations in 
OBI own law to the same eflSset. 

In the present inMnce it if obvious, that 
the application of the principle of strict con* 
atniction is imperatively reqwed« JFrs/, be- 
cm« this is a p^oal case ; Searndfy^ because 
It is a case where the highest penalty of the 
lav may be inflicted; TMfy, becmie the 
«vime charged consists in th« use of words, 
npm the constmctioa of which the prisoner's 
fittedepends; an4, i4^%, heeauie thoM words 
are staled to have been used not by a peiaoti 
veil ed uc ated, and critically acijuainted with 
IsogoagSb but by one who is m the kmest 
mtmt^m of lifie, anc| who must be nres«med 
to oe totally ignorant of the force ana delkacy 
jQf tenni. 

Having n^e these obeervalionii, let m<) caU 
jfour attcp^on to the m^or pioposition of thiy 
ipdictn^en^ It set« forth, that, ''by an act 
passed m t|ie fiflj-second year of his present 
pagjesty^ leig^ entithid, ' Aa act to render 
a^ore e»BeUiai an act passed in the thistyr 
sev^th year of his prep^t majesty, lor pv«* 
venting the administering or takina unlawful 
.qmhs,' it is inter alia, eaffctedy * 'bat eveqr 
person whp shall, in any manner or form whalp 
aoever^ administer, or caupe to be adminialered^ 
OKbeai^ng or.asiH%tiag at ^ administeiiQg 
Of ano^.or engag^iDenty purporting or i»* 
lepcljipg to bi^ the pcffson tfiOng tha san^e to 
coiDBAi^ miy tmao|) oj mn^ei) o^ any feloagr 
pvt^ble by Utw witli dtsJh^ sha)l^ o» cqu^ 
^o(m thereof by d»e o^mse of Uw,, be.adr 
jirfged guilty o|^^,^ aiM jwflSk deiAj m a 
fdp^i, vttW benffh And then 

*T7. ^^ ^^ HPti<w pf tha. ernes mk 
vhtch U.ia unnep^asa^ for me |o rMl. 



A. D. 1917. 



tm 



•l Cqm^9»i 



rwtm 



With regard to this proposition, I am ready 
to admit, that, in point or form, it is correct,) 
by founding on and quoting the words of the 
statute on which the accusation is laid. It 
does not appear to me, that there is much 
room for interpretation here. If there be xooMt 
for any, it i« as to the meaning of the words 
« purporting and intending,'* that is, whether 
the legislature means the intention of the party 
administering or taking the oath, or the in- 
tendment of the oath itself. I apprehend it 
must be clear to you, without my saying any 
thinff upon the subject, that the import of the 
word ** intending, is, that it must be an oath, 
the intendment of which is to bind to the com» 
mission of the crime, and that it is of no con- 
sequence whether the person who administeia 
had criminal intentions or not, provided tlm 
intendment of the oath is not criminaL If 
there be an ambiguity in the use of the term* 
the prisoner must have his choice in which 
sense it ^aU be taken. But there is no api* 
biguity. It could not have been the meaning; 
of the legislature to punish the secret inteun 
turns of a person administering such an oath; 
for unless that intention had been communi- 
cated, the offence in contemplation, i^amdy, 
the imposition of the unlawful ohiigfitioqy 
could not have been committed. If the wocda 
of the oath do not express the unlawful ohli-* 
gatioa, no person could conceive that it. wai^ 
undertaken; and if it was not undertakeiH. i^ 
capital punishment could not be meatnt to be 
inflicted on the penon who intended to ad?T 
minister, but who did not administer, .an eat|^ 
of that import. 

On this subject^ I may coutentmysel41^ 
recalling to your reooUection Mr. Cleik.'a obh 
aervations upon the tenn in question. In tbft 
act of thf^ arthof the kin& it waa the ob^ 
jegt. of the. leapislaitare to puniiii a ]9M«4«v 
m(tanovir„ and therefore the words esppleorelA 
are different from those of the staitote on whi«k 
the present indictment-is leitnded. The^vAid% 
in the 37tb of the king» aie^ purportiu^oa 
inUndefl to Viod, the pessivey instead. oTth* 
actiye, participle being uaed* Observe.. iImi 
differeni^e of the phcaseotganr. The term. ei»« 
ploy^hewi is *' intfRndinft^not ii«tflmdt4ji" it 
r^^B. to.ao oalh. having the inteodment \m 
bind tq the commission of the cnmiu Aid^ 
ae I have akeady remarhed, it is plain thffi 
unless. t)M4 intsfpratalioii was meant by thu 
legislature, the punishment which I hafe:.migN 
tinned wpuld not have, been inflictqd,^"faa 
Wibire would have been the offence* if the adn 
ministrator did not by words.) firmminjealg 
viltk^jthe pas|y taking the oath, in such aiman- 
ner the^ the; takm phonld. hayi a s«aaettheC 
si|(ph an obligation vnas imposed? Itia neediest 
f<^ m^.to insist moxe.uponxthisr.sttbjea^; ioK 
i^ l^dgar's case> lib. SoUciter4ieom?i;^adiMl^ 
Ma.i^ vq^iitte.. purport or ^D^sai0nvof ihg 
^mds whMiAba legislaiMye had.in^?ieiKs ai^ 
accordingly, the oaUi is reett(e4iiwTMiw in thie 
Midi^lV^; a^ Ihe enhmmpltai^ ie^ thatithe 



^87J 



57 



OGOUQB III. 



Trial ofAudrem M'Kinhy 



r^ds 



' . I ha?e bat a single obserration more to offer 
OD this inajor proposition. The- oath describ- 
ed is otie ^ ptirporttng or intending to bind the 
person taking* the same to commit any treason.'* 
It is not treason in general, but any treason ; 
tiie ivord being disjunctive, and referring to 
ainy one of the different treasons known in law' 
I shall recur to this afterwards. 

Let us see next what is the minor proposi- 
tioti of this indictment: — "Yet true it is and 
of verity, that you the said Andrew M^Kinley 
are guilty bfthe said crimes, or of one or more 
of tbeto, actor, or art and part : In so far as 
you, the said Andrew M'Kinley did, at secret 
meetings, and on other occasions, at Glasgow^ 
and in the vicitiity thereof, in the course of the 
months of November and December, 1816, 
aifd January and February, 1817, wickedly 
maliciouslyy^ and traitorously administer, or 
cause to be administered, or did aid or assist 
at' the administering, to a great number of 
persons, to the amount of several hundreds, 
an oath or engagement, or an obligation in the 
nature of an oath, binding, or purporting or 
intending to bind, the persons taxing the same 
to oomipit treason." 

Your lordships will recollect the objection 
whieh we Statea to the former indictment, and 
which you thought deserving of consideration. 
It wiis, that the indictment involved a charge 
of treason. Now, I ask, does not this indict- 
ment involve the very same charge, when it 
sets forth, that the oath was wickedly, felon- 
iously, and irailorousltf administered ? If it 
were set forth, that a person had been guilty 
of. carrying off an article feloniously, and a 
terdict was found accordingly, it would un- 

Suestionably be a conviction of felony. For 
le same reason a verdict of gnifty, in this 
cas4i would bo a conviction of treason. The 
very same objection, therefore, which occurred 
to the former indictment, on this ground, oc- 
mirs here also. It is true, that the narrative of 
the foiwer indictment was fuller; it detailed 
a number, of cirenmstances respecting the 
treason alleged • to have been committed ; but 
it' was not on the narrative that our objection 
rested, for if tbat had been the case, the pro>- 
secutor might have given up the nerrative as 
matter of explaifatioB only, which he was not 
bound to prove, and the defect of his libel 
would hate- been «cuved. The objection there, 
as'in this case, rested upon the circumstance, 
that treason was a suostantive part of the 
Charge in the minor proposition, which could 
not be separated from it^ and must therefore 
rietessarily go to proof. 

' If the prisoner was convicted under this M- 
M^'h% would be oonvicted necessarily of trea- 
soDy^without the presentment of a grand 
jnryy — ^without the benefit of a peremptory 
ekallett^ey-^without anyone privilege whieh 
Uie law of Engkmd, as oontradistinguished 
£roni oar comnion la^^ in criaiaal matters; 
•eoforsontheaiciisecl. • 
t.It will be^ fortef attended In^ that this is 
not one of those opes in whidi the lord adro- 



cate can alter his charge after the pnsoner has 
pleaded. If a person be accused of mnider 
his lordship may restrict the libel to culpable 
homicide, and the jury may convict for that 
offence, though culpable homicide is not men- 
tioned in the indictment. But that proceeds 
upon the ground that the one crime is of the 
same species and denomination as the other. 
Where the crimes are generically different, it 
is impossible to substitute the one for the other. 
Thus, in 1663, in the case of Graham, on a 
charge of theft, the jury brought in a verdict 
of reset of theft ; but it was found that no 
sentence could pass on that verdict, because 
reset of theft is a crime radically different 
from theft. The same thing happened in the 
case of Charles Stewart, in 1800. Here the 
public prosecutor has charged the prisoner 
with treason, and therefore he cannot alter his 
libel into a charge of felony : for, if that were 
the case, the prisoner, as Sir George Macken^ 
zie observes, might come to the bar as unpre- 
pared to defend himself, as if he' had never 
been served with an indictment at all. In like 
manner, Peddie was tried at the circuit at 
Perth alternately for a rape, and an assauk 
with intent to ravish; the jury found him 
guilty of assault only ; and the Court of Justi- 
ciary here, to whom the case was remitted, 
decided that no punishment could pass upon 
that verdict.* 

If your lordships were of opinion that this 
point required to be argued upon informations 
m Edgar's case, there is the same necessity for 
informations here. For what reason the pol>- 
lic prosecutor has thought fit to desert the 
former indictments, - and to serve new ones» 
containing the very same defect, I cannot 
divine. Of one thing I am certain, that the 
same defect does exist, and that the merb 
omission of the narrative or preamble, cannot 
in the smallest degree change the substance 
of the charge. 

We come now to the consideration of the 
words of this oath, which we are told purports 
or intends to bind the persons taking it to 
commit felony. There are four clauses in 
this oath, upon each of which, separately, I 
shidl beg to make' a few observations. But, 
before doing so, let me again, entreat you to 
keep in mind, and to apply the principles with 
which I set out. You have seen how statutes 
were interpreted, though composed by all the 
wisdom of Parlioment, and when it must be 
presumable that the legislature knew the force 
of the words which they employed. But here 
you have men in the lowest situation of lifo^ 
using words, of the force of which they might 
not be aware ; i Jbrtiari, therefore, must you 
construe these words wi^ the utmost latitude 
in favour of the pritoner, and the utmost 
strictness agunst the prosecutor. 
• I'fomierly gave some' illustrations upon this 
Sttlljectftonf the law of Sngland; permit me 
now to- add one or two mm our own law'. 

* 4 Hume, 308. 



989] 



for Adm^uidering unUxvifui Oaths. 



A. D. 1817. 



[290. 



There is a case mentioned by Mr. Hume, io 
which a pefaon of the name of Janet Ramsay, 
when precognosced, emitted a declaration 
confessing the crime laid to her charge. When 
brought to tna>y she pleaded Not Guilty; but, 
besides other satis&ctory evidence her de- 
claration was laid before the jury, who return- 
ed a verdict finding her guilty "in terms of 
her confession," meaning undoubtedly the 
declaration which she emitted when precog- 
Dosced. Yet you found that no sentence could 
pass apon thai verdict, because the prisoner 
had not confessed the crime at the bar ; and 
an extrajudicial declaration of guilt, is not, 
technically speaking, a confession. 

But take a case more nearly resembling the 
present. When a person is accused of per- 
jury, the prosecutor must establish that the 
oalL sworn is contrary to the truth ; and it is 
the province of the Court, in judging of the 
relerancy of the indictment, to determine 
whether the oath is reconcileable to the truth 
or not. Kow, I entreat your lordships to ob- 
serve how strictly the Court has been in use 
to construe the words of an oath in favour of 
m. prisoner, attempting, by eyery possible 
means, to remove the inconsbtency ; and, if 
it can be removed, the libel is held not to be 
relevant, and the prisoner cannot go to trial 
upon it. In support of this observation, I 
most refer to Uie learned author, so 6ften 
quoted. "The substance of the crime, and 
that which all the other particulars in the de- 
scription of it only modify and limit is, that a 
plain falsehood be explicitly and wilfully 
affirmed. For, if either there is any doubt 
about the true state of the fact, or about the 
sense in which the panel's words are to be 
understood; or if they can in any reasonable 
way be reconciled with the truth, or with an 
innocent intention ; or, in general, if it is not 
manifest and obvious, but matter of likelihood 
only, and of inference and comparison of 
many particulars, that he had a false and cor- 
rupt meaning, this shall save him from the 
accusation of perjury. Indeed, it would be 
▼ery dangerous to convict any one upon such 
constructive grounds ; considering the imper- 
fection of language, and the still more imper- 
lect use which so many persons have of it, and 
how unequal their degrees of intelligence in 
the affairs of life, and even their degrees of 
capacity for the observation of facts."* 

There is not one of these observations that 
would not apply in this case, where you have 
the words of an oath to construe, just as in a 
case of peijury. Now, observe the precedent 
to which Mr. Hume refers : — " This scrupu- 
lous and equitable caution was in particular 
observed in deciding on the relevancy of the 
libel against Archibald M'Killop. This man 
bad been a witness in the trial of certain per- 
sons for a violent deforcement of the revenue 
officers, and )iad given a testimony which, in 
many points, was very favourable to the panels. 



VOL, XXXIII. 



1 Hume, 12r. 



Among other things, he had sworn that they 
addressed the revenue officers in a moderate 
and inoffensive manner, ^ desiring them to walk 
soberly, and to make no disturbance.' Now, 
in this article, besides others,* he was charged 
with peijury; inasmuch (said the libeD as it 
will be proved, that the persons accused went 
violently up to the officers, demanded their 
arras, and threatened to blow them up if they 
resisted. . It was pleaded for the panel, that 
the two assertions were not absolutely incon- 
sistent, for that in swearing to the one sort of 
address and course of behaviour, he did not 
absolutely exclude the other, which might be 
used at a different period of the fray, and 
without his attending to it at the time." And 
the Court held ** the allegation in the second 
article of the said indictment charged, in these 
words ;— * That the panel swore, that at the 
time there mentioned, the said James M'Kenzie 
desired the said Alexander Cook and Alexander 
Thomson, to walk soberly and make no dis* 
turbance,' not relevant and refme to admit the 
same to probation,*' I do not ask of your lord- 
ships to construe the oath in this indictment 
more strictly — the mere possibility of innocence 
induced the Court to hold, that peijury was not 
relevantly charged. 

Let me intreat you, then, to apply the same 
principles to this oath, if it be necessary to 
apply them. I say, if necessary ; for, I state, 
that if you were to construe it with the utmost 
latitude against the prisoner, with the same 
latitude as you would construe a last will, a 
marriage contract, or any other document the 
most favoured in law, it will not yield the sens* 
ascribed to it by the prosecutor. 

It consists of four clauses. Let us consider 
each of them. 

The first is : "I will persevere in my en- 
deavours to form a brotherhood of affection 
among Britons of every description, who are 
considered worthy of confidence.'' Is there 
any thing in the smallest degree blameable, not 
to say treasonable, in tliis 7 May not a brother- 
hood be formed of any set of persons, vrithout 
.a criminal, without a treasonable purpose? 
It was to be formed of persons worthy of con« 
fidence ; it was to be a brother})ood of affection^ 
It may have been i ntcnd ed to have been criminal, 
or it may have been intended to have been inno^ 
cent ; but there is nothing in the purport of 
these words which can be interpreted as ex- 
pressing a design of forming a brotherhood for 
improper purposes. Upon that clause I think 
it unnecessary to say a word more. 

Then, what is the second clause? " That I 
will persevere in my endeavours to obtain f(5r 
all the people in Great Britain and Ireland, 
not disqualified by crimes or insanity, tHo 
elective franchise, at the age of twenty one> 
with free and equal representation, and annual 
parliaments.'' As the law stands at present, 
there are neither annual parliaments noi uni- 
versal suffrage ; but is there any impropriety 
in those who think it would be for the ad- 
vantage of the constitution to endeavour to ob- 

V 



3911 



£7 GEOKGE III. 



Trial of Andrea M* Kinky 



(SSP2 



tain theiD, provided they do so aocordiDg to 
law } It is impossible for a xnomeDt to doubt 
that it 1:1 lawful so to do. There are those who 
think that an alteration of this kind — I mean 
the adoption of annual parliaments, and uni- 
▼etsal suffrage — would be a fundamental alte- 
ration of the constitution of Great Britian ; but 
you know that it is laid down by the best au> 
thoritiesy that there is no law so fundamental 
that it may not be innovated — no principle so 
fixed that it may not be changed. Parliament 
iD%y new-model the succession to the Crown — 
it may alter the religion of the country — ^il may 
alter its own constitution. Parliaments, for 
instance, were not always septennial. There 
ie no doubt that annual parliaments and univer- 
sal sufoige may be obtained in a legal mode, 
in the same manner as any other change, by a 
parliamentary act ; and those who hold these 
alterations to be in their nature injurious to the 
constitution, never doubted, notwithstanding, 
that they may be competently and legally in- 
troduced. In what respect is this country dis- 
tinguished from every country upon the face 
of the earth, but that every subject of the land 
nay approach parliament, the fountain of ab- 
solute jMower — ^may suggest alterations in the 
laws or the country— and may press, by solici- 
tation and argument, the adoption of measures 
which he supposes to be advantageous? It is 
a libel upon the constitution to say there is any 
crime in this clause of the oath, provided the 
endeavours it alludes to are lawful. 

We come to the third clause, to which I call 
your attention more particularly, as it was a 
subject of much argument in the former dis- 
cussion : ** I will support the same to the utmost 
of my power, either by moral or physical 
strength, as the case may require.'' In this 
clause, you are, for the first time, as I conceive, 
called upon to exercise the power of interpre- 
tation. It is ambiguous in two respects ; and 
surely it is not surprising that persons in the 
situation of those who formed this brotherhood 
should have fallen into ambiguous and incorrect 
modes of expression. 

The first ambiguity is in the use of a relative, 
without any means of discovering the antece- 
dent. '^I will support Me same:** What is 
the same? There are three previous things 
mentioned, all, or any of which, may be the 
antecedent. How are you to choose which of 
these is the antecedent ? If it be of importance 
to the prisoner, which it is not, he is entitled 
to choose the antecedent; and, if any one of 
them rendered the oath innocent, while the 
others inferred guilt, he would be entitled to 
choose that for his antecedent, and you must 
adopt the innocent interpretation. Fortunately, 
however, in the present instance, it is indif- 
ferent which of them you select, for they are 
all equally harmless. Let us try them one by 
one. The leading member of the sentence is, 
** ir will persevere in my endeavours to form a 
brotherhood.'' That brotherhood may be the 
antecedent. It is the leading object in the 
sentence ; after which follows an obligatiou to. 



do certain things ; and then comes the engage- 
ment to support ike tame, signifying, according 
to that construction an engxigement to support 
the brotherhood. That will not infer any thing 
criminal ; and, at all events, will never infer 
the crime chai^;ed against the prisoner, llie 
brotherhood might be supportea in many ways. 
When illegally attacked, it might with pro- 
priety be defended ; and when legally attacked 
ny the magistrates, the defence of it, though it 
might be criminal and a felony, is not treason ; 
and, therefore, even if the oath were to support 
that brotherhood by illegal means, that would 
not be an obligation of the nature charged in 
the minor proposition ; for there is no hstna in 
supporting a nrotherhood of affection among 
Bntons of every description ; at alf events iti» 
not the crime of treason. 

Take another view. — ^He says, he will en- 
deavour ** to obtain the elective franchbe, at 
the age of twenty-one, vtrith free and equal 
representation, and annual parilaments." If 
you do not take the leading antecedent in the 
sentence, according to ordinary construction, 
you should take that immediately preceding 
the relative, namely, annual parliaments and 
universal suffrage. Is there any thing im- 
proper or criminal in supporting those ? Yoa 
can support nothing not in existence; they 
must be obtained before they can be supported. 
If, therefore, you take the first, or if you take 
the last members of the sentence for the ante- 
cedent, nothing like a criminal obligation can 
be extracted. 

Take the only other supposeable antecedent, 
*^ I will persevere in my endeavourt to obtain 
for all the people in Great Britain and Ireland, 
not disqualified by crimes or insanity, the 
elective franchise, at the age of twenty-one, 
with free and equal representation, and annual 
parliaments.'^ Is there any thing criminal in 
supporting one's endeavours to obtain ? It in- 
fers a solecism, and is contrary to the ordinary 
forms of speech. To support endeavours, is 
just to endeavour ; and, therefore, if there be 
any choice as to these antecedents, tiiis is the 
one that ought to be rejected. But, suppose 
these ignorant people liieant, '' to support their 
endeavours to obtain these objects," where is 
the illegality in that f If they supported their 
endeavours in a lawful manner, it is what every 
good subject, holding these opinions, should be 
inclined to do. 

But, the prosecutor observes, that the oath 
does not stop at supporting the endeavours, but 
engages to *' support tlie same io ike tUmoii rf 
my power, either by moral orphyskal strength^ m 
the case m^reguireJ* Here, it seems to he 
thought, that the sting of the case lies.— I ask 
your lordships, when a person comes under ati 
engagement to exert all his endeaTOors, or to 
act to the utmost of his power upon any one 
occasion, how that en^gement should, in fair- 
ness, be construed. The construction adopted 
in every case is this, that he will exert his 
lawful endeavours. It is the maxim of Uw, as 
Mr. Clerk observed, when we were lasthere^ 



1 



Jiir Adminisitrukg uniawful Oaths. 



A. D. iai7. 



[204 



id Umtmm facert y oi mi iii ii , quod de jun facere 
ptmiamtt. There is no obligatioo ivhich a man 
undertakes to do, in this or any vell-gOTemed 
couDtrfy that does not imply, if it be not ex- 
pressed} that irhat he engages to do is lawful. 
VoQ mayezdade that presumption by declaring 
you will do it unlawnilly ; but, if not so ex- 
cluded, it is always understood. 

The observations which I have made on 
these three antecedents separately, apply to 
them all when taken together ; and if none of 
them singly infers ciiminality, they will not infer 
it when combined. 

But, it is the phrase vhfnoal ttrenfth which 
seems to have laid hola of the imagination of 
the public prosecutor ; and he seems to think 
that the mere use of diat term necessarily im- 
plies, that a rising in arms was in contem- 
plation, and that the persons engaging to use 
their endeavours to obtain these things, were 
to rise in rebellion to obtain them. The lord 
advocate imagiues all this, merely because the 
term ^' physiod strength" is introduced.— But 
I would observe, that this obligation was im- 
posed on an individual, not upon a body ; and 
there vras no such thing as binding him to 
exert his endeavours in conjunction with the 
endeavours of others. It was upon each, in 
his individual capacity, that an ooligation was 
imposed. 

But that is, comparatively speaking, of little 
consequence : let it be granted that it was a 
collective obligation, what did it import? Is 
it that they shall exert their physical strength 
in an unlawful way ? No ; for, according to 
the maxim I stated, the presumption is, that 
the mode vras to be a lawful one. Physical 
strength may be exerted in twenty ways which 
are lawful ; and therefore you are to infer it 
was to be lawfully exerted to obtain the objects 
in view. 

To show the fallacy of any other construc- 
tion, let us look a little into the nature of the 
alternative obligation to exert mortd UrtnM. 
In the last axgument on this head, it was fairly 
admitted, that an obligation to endeavour to 
obtain these objects by moral strength would 
not have been in the smallest degree criminal, 
and never could have been construed to in* 
fer treason. But, you must observe, that 
treason may be committed in the exercise of 
moral, just as well as in the exercise of physi- 
cal strength. For instance, an individual, in 
order to obtain these objects of annual parlia- 
ments and universal suffrage, so mach desired 
by the brotherhood, might speak or write ad- 
visedly, that the present family has no right to 
the crown — or that parliament, without con- 
sent of the crown, is not entitled to alter the 
succession ; which is high treason under the 
6th of queen Anne. But, because a man binds 
himself to endeavour to procure annual parlia- 
ments and universal suffrage by moral strength, 
is be bound to commit 'these or any other trea- 
sons? That would be a construction so forced, 
that, even on the other side of the bar, it 
would not be listened to for a moment. Why, 



then, construe the obligation to exercise phy« 
sical stren^, so as to infer that it was to be 
exercised m an unlawful manner? The one 
interpretation is as much strained as the other. 
And if physical strength may be lawfttlly 
exerted, tne presumption ought to be, that the 
lawful exertion of it was in the view of the 
parties. Or, supposing even that they con- 
templated an unlawful act, it does not neces- 
sarily follow that they contemplated an act of 
treason. 

Physical strength might be exerted lawfully 
to obtain these objects, by forming this bro- 
therhood — by collecting its members together 
— by defending them against unjust attacks, 
by going by their orders over the country, can- 
vassing members of parliament for their votes, 
and in a thousand other ways which may be 
easily figured. And It might be unlawfully 
exerted in as many ways — in resisting the 
magistrates coming to disperse a meeting — in 
rescuing members apprehended by law— in 
putting members of parliament under durance 
or restraint, and so forth. All these acts, how- 
ever criminal, and amounting even to murder 
and felony, would not amount to treason. 
Now, because physical strength might possibly 
be exerted in a way to infer treason, are you 
therefore to conclude that that mode of its ex- 
ertion was necessarily in the view of the parties? 

Just reverse the case, and see how you 
would construe an engagement to prevent in- 
novation. Suppose a set of gentlemen inihe 
country — whose politics are the reverse of 
those of the prisoner — were to enter into an 
association, and bind themselves by an oath, 
to support septennial parliaments and the 
elective franchise, as now established, by mo- 
ral and physical strength. It would be a bold 
construction to call that treason. Yet it is 
precisely the construction employed by the 
pul^ic prosecutor in this case ; for a man may 
compass the king's death or levy war against 
him in supporting septennial parliaments, as 
well as in endeavouring to obtain annual par- 
liaments. 

I shall call your attention to one or two In- 
stances of oaths administered every day, and 
see how the principle of construction con- 
tended for by the lord advocate would apply 
to them. You know, that, when a soldier is 
inlisted, he is attested by a magistrate, and an 
oath is administered, which is prescribed by 
the Mutiny. act. It is in these terms: '^1 
swear that I will bear true allegiance to our 
sovereign Lord King George, and that I will 
as in my duty bound, defend him in his person, 
crown, and dignity, against all his enemies ; 
and that so long as I shall remain in his ma- 
jesty^s service, I vrill duly observe and obey 
his majestjr's orders, and the orders qfthegene* 
rals and officers set over me by his majesty** 

Is that %n obligation to obey an unlawful 
order of an officer? I apprehend it is not. 
You will not go nicely to work in discriminating 
between right and wrong where the duty of a 
common soldier is concerned ; but where an 



295] 



57 GEORGE III. 



Trial of AttdrOB M'Kinleif 



[396 



order he receives is plainly illegal, as to assas- 
sinate or murder a man, or resist a civil ma- 
gistrate, is he bound to obey that order ? No. 
The terms of his oath extend to all orders, 
but you will apply the maxim, id tantumfacere 
potsumus quod dejurejacer^possumus. In swear- 
ing to obey all orders, the oath intends lawful 
orders alone. You will recollect, there was a 
trial before the Court of Justiciary, in a case 
where a soldier had, by orders from his officer, 
resisted a magistrate. I speak of the case of 
Ferguson, in 1764. He was condemned by 
the Court, and it would not have availed him 
to plead, that the oath administered to him 
when enlisted, bound him to obey every order, 
whether lawful or unlawful. 

I formerly mentioned to your lordships bow 
the oath of abjuration imposed by govern- 
ment required to be construed. It binds the 
parties to exert all their endeavours to support 
the king's government and the protestant reli- 
gion. What endeavours ? why lawful endea- 
vours surely, not by committing murder or 
felony. Construe this oath as you construe 
those oaths ; let the general terms receive the 
same qualifications in both, and it is impossi- 
ble to extract a treasonable obligation. 

I have said perhaps too much on this point. 
Let me conclude with a few observations on 
the last clause : ** I farther swear, that neither 
hopes, fears, rewards^ or punishments, shall 
induce me to inform on, or give evidence 
against, any membef or members, collectively 
or individually, for any act or expression done 
or made, in or out, in this or similar societies, 
under the punishment of death, to be inflicted 
on me by any member or members of such 
societies. So help me God.'' 

Nobody can doqbt that it was a misdemea- 
nor to impose, or to undertake this obligation ; 
but this is not the question at present. Your 
lordships have to judge, whether this is neces- 
sarily an obligation to commit treason. This 
SQciety was composed chiefly of individuals in 
the lowest stations of life, ignorant and unin- 
formed persons, who, in the course of their 
discussions, might have fallen into improper 
or seditious expressions. It was natural that 
the members ot the society should impose an 
obligation not to reveal what was said, lest 
any of their number should be convicted of 
libel or sedition. But an obligation to con- 
ceal such imprudent expressions, or even not 
to disclose improper acts committed in the 
presence of a person, is not an obligation im- 
posed on that person to be guilty of libel, or 
sedition, or any similar crime, far less is it an 
obfigation upon him to be guilty of treason. 
Itrnay be a misdemeanor, but it is not that 
crime which your lordships are now called 
upon, by the major proposition of this indict- 
ment, to try ; and if that be the case, it is 
dear that the libel it not relevantly laid. 

Take the oath in all its parts — apply to it 
the ordinary rules of interpretation — take the 
words >\iih the greatest rigour, or the greatest 
kiitude, and you will never extract that sense. 



which it is necessary to extract from them, 
before you can have a relevant charge under 
the statute. 

The prosecutor is not satisfied with reci- 
ting the oath in his minor proposition, he gives 
a commentary upon it, and it remains to 
be considered, whether the (tommentaryis a 
fair expression of the import of the oath ; and, 
supposing that it is, whether the oath so con- 
strued amounts to a treasonable obligatioii. 
Af^er reciting the oath, the libel proceeds 
thus : ^ Which oath did bind, ordid purportor 
intend to bind, the persons taking the same to 
commit treason by effecting, by physical force, 
the subversion of the established government, 
laws, and constitution of this kingdom, and 
especially by obtaining annual parliaments 
and universal suffrage by unlawful and violent 
means,'* Is that a fair gloss upon the words 
of the oath ? Do they signify what the prose- 
cutor says ? Or are they radically and essen- 
tially of a different signification? There is not 
one word in the oath of an obligation to efiect 
any thing, or to subvert any thing, if by sub- 
version you mean ought else than a lawlbl 
endeavour to alter an existing law. The oath 
binds the taker, ''to persevere in his endea- 
vours to obtain for all the people in Great 
Britain and Ireland, not disqualined by crimes 
or insanity, the elective franchise, at the age of 
twenty-one, with free and equal representation^ 
and annual parliaments." Nothing is said 
here of the government, laws, and consti- 
tution of the kingdom; or of any laws, ex- 
cept those which relate to the duration of 
parliament, and the elective franchise. It 
Dinds the taker to subvert nothing by physical 
strength, not even the laws against universal 
suffrage and annual parliaments, and far less 
the established government, law^, and consti- 
tution in general. It contains no obligatfon 
to obtain annual parliaments and universal 
suffrage, or any thing else, by unlawful and 
violent means. 

It binds the taker to support one of three 
things,— or, if you will, all the three^ — by 
moral and physical strength ; but this obliga- 
tion must be qualified, as every such obliga- 
tion b qualified, in ordinary speech ; otherwise 
all human affairs would be thrown into confu- 
sion, and language would become the instru- 
ment of deception and error. If it be so qua- 
lified, the obligation is ' confessedly innocent. 
It is not a gloss to substitute words of one 
import for words of a totally different import, 
and to change the meaning of a sentence -by 
the interpolation of whole clauses which tliey 
do not contain. The subjects of this country 
would be in a dreadful situation indeed, if 
they were exposed to a capital conviction for 
the use of words ; in construing which words 
the prosecutor might substitute and interpo- 
late as he thought fit, until he found a meaning 
which suited his purpose, though totally 
different from the meaning which the words, 
as he himself recited them, naturally and pro- 
perly bore. 



397] 



Jiff Adnamttarimg untanfiU Oaths. 



A. D. 1817. 



Cade 



I am afraid I fiiUgne your locdshipsy in goiDg 
over grounds which were stated, if not much 
commented on, before. Bat I dow come to 
another grounc^ to which I must particularly 
call your attention, being sensible, that the 
first time I had the honour of bringing it 
before you, it was imperfectly a^ed. After 
having given it more mature consideration, 
and weighed the authorities touching it, there 
is no one objeclion to this indictment on which 
the counsel on this side of the bar rest with 
more security and confidence. It is this, — 
that, esio the words of this oath import what 
the public prosecutor says they import, it will 
not make a relevant charge ; for granting that 
the oath binds the taker to do all that the 
prosecutor alleges, I maintain it is not an 
obligation to commit treason. 

fiehre entering on this objection, I suppose 
it will be conceded to me, without any argu- 
ment, that, in an indictment under this statute, 
the prosecutor is bound to specify the treason 
to which he refers, — ^that he is bound to state 
it precisely, formally, and technically. If 
this were not the case, there is not a more 
ensnaring or detestable law in the criminal 
eode, bemuse almost any oath might be twisted 
into an unlawful obligation, and the prisoner 
wouM come to the bar ignorant of what he 
was accused, and unprepued to defend him- 
self. 

To illustrate this, suppose an indictment 
for administering an oath, binding the 
laker to commit felony ; and, in that case, I 
beg leave to ask, whether the prosecutor would 
he required to specify the felony he had in 
view. There is a vast variety of felonies, 
some of them existing at common law, and 
others introduced by statute. Many of these 
are complicated, obscure, and undefined, de- 
pending on the construction of revenue laws, 
commercial regulations, and the mysteries of 
trades and professions ; now, if the panel was 
not made aware of the felony alluded to in 
the indictment, it would often be impossible 
for him to conjecture in what tlie crime con- 
sisted which was laid to his charge. Thus, 
svqppose a prisoner was indicted for adminis- 
tering an oath binding the taker to commit 
felony, because it bound him to carry away a 
certain quantity of com from the place where 
it was deposited, and give it to a shipmaster. 
Here the felony in view might be theft ; or it 
night be fraudulent bankruptcy ; or it might 
be taking com from a storehouse, where it was 
deposited for exportation, contrary to the 
statute ;* or it might be holding correspond- 
ence with a person who had resided in France, 
contrary to the non-intercouse statutes .f It 
will not be contended, that the prosecutor 
might conceal into which of those felonies he 
meant to construe the oadi, and, consequently, 
deprive the prisoner of all means of defending 
himself. 

* it Geo: II, c. 92. 

t 33 Geo: UI, c. 27; 34 Geo: III, c 9. 



Thecaseef treason is perfectly aaaloffotts. It 
is true, there are not so many treasons as felonies, 
but there are, in the law, at least ten different 
treasons, and the prisoner is left altogether 
in the dark to which of these the lord advocate 
alluded. 

The statute bears, ''That every person who 
shall, in any manner or form whatsoever, ad- 
minister, or cause to be administered, or be 
aiding or assisting at the administering, of any 
oath or engagement, purporting or intending 
to bind the person ts^mg the sane to commit 
any treason,'^ &c. The legislature here pnls 
the term disjunctively. It does not say tseer 
son in general, but any trtamm; clearly intend- 
ing, therefore, that the prosecutor should 
specify the particular treason which he asserts 
the oath bound the taker to commit. Henoe 
I infer, that nothing but a tedinioal descrip- 
tion of the treason referred to, will suffice lo 
make a libel under the statute relevant. It is 
a maxim tn crmtndEtftus mm Ikei ^fogari, and 
there never was a case in which the maxim was 
more applicable than the present. 

Let us consider the treasons actually exist- 
ing in the law, and try to discover to which of 
them it is that the prosecutor alludes, in the 
minor proposition of this indictment. I be- 
lieve you will find the attempt akogether 
fraitless. 

The first, mentioned by Foster, Blackstnne, 
and other writers, is compassing the king'a 
death. It is not laid, that this oath bound to 
compass the king's death, nor even to commit 
any of the conunon and usual overt acts whieh 
are considered as evidence of compassing the 
king's death — for example, to murder the 
king, or to put him in durance. I shall have 
occasion, by and by, to direct your attention 
to the case, that an overt act had been charged, 
that you may consider whether that would 
have rendered the indictment relevant. At 
present I am asking, whether the proseeutor 
asserts that the oath bound the taker to commit 
that species of treason ? — Unquestionably he 
does not. 

The second treason is, to violate the queen, 
or the king's eldest daughter. It wiU not be 
pretended that this treason was in view. 

The third is to levy war against the king in 
his realm. The prosecutor does not assert 
that that obligation was imposed, as will be 
evident from the following consideratione. 
To constitute this treason two things are ne- 
cessary: 1st, That war shall be levied: llnd. 
That it shall be levied against the king ; or, 
what is held equivalent, that it shi^ be levied 
for a public purpose^ as destroying all enclo- 
sures and so fortti. 

Was this an oath to levy war? The old 
writers held, that war could not be levied, 
tmless the persons engaged to levy it were 
arraved modo guenino; unless they were as- 
sembled with ^ all the pomp and cireomstance 
of war." The law ts so laid down by sir 
Matthew Hale. I am aware, there has been 
a relaxation in the law siece that period i end 



aim 



57 GEORGE IIL 



TrMo/Anirtm M^KhUey 



Hial it is not iMeesrarf tint the penotis tball 
be so ankied; but there most be arisiDg or 
insorrecdon of a multitade; and a few tndi- 
▼idnals assembled^ aimed or noarmedy is not 
letying war. 

Sir Michael Foster corrects the old doctrine 
as laid down by sir Matthew Hale, p%ge 206, 
first folio edition : *^ Lord Chief Justice Hale, 
speaking of such unlawful assemblies as may 
amount to a levying of war within the 25th 
Edward Srd^ taketh a difierence between those 
insurrections which have carried the appear- 
ance of an army formed under leaders, and 
prorided with militaiy weapons, and with 
drums, colours, ite. and those other disorderly 
tumultuous assemblies which have been drawn 
together, and conducted to purposes manifest- 
W unlawful, but without any of the ordinary 
show and apparatus of war before men- 
tioned. 

** I do not think any great stress can be laid 
on that distinction, it is true, that in case of 
levying war, the indictments generally charge, 
that the defendants were armed and arrayed 
in a warlike manner; and, where the case 
would adroit of it, the other cireumstances of 
swords, guns, drums, colours, &c. have been 
added. But I think the merits of the case 
have never turned singly on any of these cir- 
cumstances.'' 

^ In the cases of Damaree and Purehase, 
which are the last printed cases that have come 
in judgment on the point of constructive levy- 
ing war, there was nothing given in evidence 
of the usual pageantry of war, no military 
weapons, no banners or drums, nor any regular 
consultation previous to the rising. And yet 
the want of those circumstances weighed no- 
thing with the Court, though the prisoner's 
•counsel insisted much on that matter. The 
number of the insurgents supplied the want of 
military weapons; and they were provided 
with axes, crows, and other tools of Uie like 
nature, proper for the mischief they intended 
to effect. 



>Furor arma ministrat. 



^^ Sect. 1. The true criterion therefore in 
all these cases is, quo anbno did the parties as- 
semble. For if the assembly be upon some 
private quarrel, or to take revenge of particu- 
iar persons, the statute of treasons hath already * 
determined that point in fevourof the sub- 
ject." 

And aftenvards : ^* Sn^JTy '^^ words of 
the first clause descriptive ofthe offence, * if any 
man ride armed openly, or secretly, with men 
of arms,' did in the langu^pe in those times 
mean nothing less than the assembling bodies of 
men, friends, tenants, or dependants, armed 
and arrayed in a warlike manner, in order to 
effect some purpose or other by dint of num- 
bers and superior strength. And yet those 
assemblies so anned and arrayed, if drawn to- 
gether for purposes of a private nature, were 
not deemed treasonable." 

Again^ *f Sect. 11. Upon the same |trinci- 



[aoo 

pie,, and widiin the reason and equity of the 
statute, risings to maintain a private claim of 
right, or to destroy particular indosnres," and 
so forth. 

^ And upon the same principle^ and within 
the same equitv of the statute, I think it was 
very rightly held by Awe of the judges, that a 
rising of the wearers in and about London to 
destroy all engine4ooms, &g." 

So he goes on to the end of the chapter, 
stating, that though wariike apparatus is not 
necessary, there must be a rising in order that 
the multitude may compensate for the want oC 
regular array. 

The second requisite is, that the insurrectioB 
shall take place in order to accomplish a publie 
object. It is no levying of war, if one noble^ 
man rise against another, to bum his house or 
destioy his inclosurirs, for these are private, 
not public objects. 

llie' case of lord George Gordon vras referred 
to when we were last here. There, the qnestioB 
was not whether it was necessary there should 
be an insurrection to constitute the levying of 
war, but whether an insurrection, which had con- 
fessedly taken place, was for a public purpose. 
It was not upon the first, but upon the secoad 
requisite, that the doubt arose. It was con- 
tended, that the purpose being to compel par- 
liament to repeal a statute, was not a poUic 
purpose ; and lord Mansfield, in an able speech, 
says, — ** The prisoner at the bar is indicted 
for diat species of high treason whidi is cdled 
levying war against die king ; and, therefore,, 
it is necessary you should first be informed 
what is in law levying war against the king, so 
as to constitute the crime of high treason, 
within the statute of Edward 3rd, and, perw 
haps, according to the legal s^niification of 
the term, before that statute. Tnere are two 
kinds of levying vrar :^-one against the pereoa 
of the king ; to imprison, to dethrone, or to 
kill him ; or to make him' change measures, or 
remove counsellors ; — ^the other, which u said 
to be levied against the majesty of the king^ 
or in other words, against him in his regal 
capacity ; at when a muUUuJe rite and attenwie 
to attain Iw force and violeneef aiigf object of a «e- 
nend pidJicnahre; that it levying war aga uu i 
the nujettff of the hmg ; and most reasonably 
so held, because it tends to dissolve all the 
bonds of society, to destroy property, and to 
overturn government; and, by force of arms, 
to restrain the king from reigning according to 
law. 

'' Though the form of an indictment for this 
species of treason mentions drums, trumpets, 
arms, swords, fifes, and guns, yet none of Uiese 
cireumstances are essential. The question 
always is, whether the intent is, by force and 
violence, to attain an object of a general and 
public nature, by any instruments, or by dini 
of their numbert. Whoever incites, advises, 
encourages, or is any way aiding toracik a mud" 
titude to attembled with suq^ intent, though he 
does not personally appear among them, or 
with his own hands commit any violence iftiiat* 



901] 



Jar AdmtMtslenng unlawfid Oaths^ 



A. D. 1817. 



[3Wi 



wDCfv, yet he is equaUy a principal with those 
who act, and guilty of high treason.'** 

If yon will go on to the end of the learned 
judge's speech, you will find the question was, 
whether the' purpose of the insurrection was a 
poblic one, and consequently, whether the war 
levied was against the king or not. 

Bat there is nothing in the oath here, even 
according to the prosecutor's interpretation, 
which binds the teker to levy war at aU — to 
rise in arms— or to assemble tumultuously for 
the purpose of obtaining any object, either 
pnblic or private. 

There are other four treasons-Hidhering to 
^ king's enemies— counterfeiting the great 
and privy seals — counterfeiting the coin — and 
slaying the chancellor and other judges in the 
eiecntion of their office. These may be passed 
over in silence, for it will not be pretended 
that die oath alludes to them. Neitner can it 
aUnde to the treasons relative to Papists — ^to 
the debasement of the coin — or the obstruc- 
tion of the Protestant succession. 

Then there is a treason which was intro- 
daeed by the 36th of George 3rd. By that act 
it is made treason to conspire to levy war for 
certain purposes. The statute says, that ^ if 
any person or p^rsons'whatsoever, shall, within 
- the realm or without, compass^ imagine, invent, 
devise^ or intend death or destruction, or any 
bodily harm tending to death or destruction, 
maim or wounding, imprisonment or restraint, 
of the person of the same our sovereign lord 
the king, his heirs and successors ; or to de- 
prive or depose him or them from the style, 
noiumr, or kingly name of the imperial crown 
of this realm, or of any other of his majesty's 
dominions or conntries ; or to levy war against 
hii majesty, his heirs and successors, within 
this realm, in order, by force or constraint, to 
compel him or them to change his or their 
neasnres or counsels, or in order to put any 
force or constraint upon, or intimidate or over- 
awe both Houses, or either House of Parlia- 
ment; or to move or stir any foreigner or 
sCraDger with force to invade this realm, or 
any other of his majesty's dominions or coun- 
tries, under the obeisance of his majesty, his 
heiiB and successors ? and such compassings, 
ioBaginalions, inventions, devices, or inten- 
cioiis, or any of them, shall express, utter, or 
declare, by publishing any printing or writing, 
or 1^ anv overt act or deed ; l^ing legally 
ooDvictea thereof, upon the oadis of two law Ail 
and credible witnesses, upon trial or otherwise 
eoDTicted or attainted by due course of law, 
then everysQch penK>n or persons so, as aforesaid, 
oflfending, shall be deemed, declared, and ad- 
judged to be a traitor and traitors, and shall 
eniFer pains of death, and also lose and forfeit 
as in caaea of high treason." 

We may lay out of view what is enacted as 
to devices directed against the king's person, 
or attempts lo depose him. The only part of 
the statute to which the prosecutor can allude, 

* 21 How. St. Tr. 644, 645. 



is that which relates to a compulsory change 
of the king's measures ; or to the intimidation 
of the Houses of Parliament. But your lord- 
ships will observe, that it is not declared trea- 
son by the statute, to alter the king's counsels 
by compulsion, or to intimidate the parliament, 
but to lety war for either of these purposes. 
Now this indictment does not set fortn that the 
oath libelled on contained an obligation iolm/y 
war for these or for any other purposes. 

But the lord advocate seemed to hint, 
on a former occasion, that it was sufficient 
to render an indictment under the statute 
libelled on relevant, if he set forth that 
the oath administered containcNl an oblige^ 
tion to perform an act, which the jury should 
hold an overt act of treason, although the in- 
dictment did not specify what the treason was 
of which it was an overt act. For example, he 
said that the indictment here set forth, that the 
oath bound the taker to subvert the govern- 
ment by physical strength, and, in particular, 
to obtain annual parliaments and universal 
suffrage, by unlawtul means ; and those acts 
being overt acts of treason, it followed, that 
the charge in the indictment was accurately 
laid. But I ask your lordships, if this doctrine 
be well founded? Is it sufficient, under the 
statute, to libel that an oath was administered, 
binding the party — to do— what? — Not to 
commit treason, but — to do an act which the 
jury shall discover to be an overt act of trea- 
son. An overt act of treason is that which 
convinces a jury that treason has been com- 
mitted ; but it is no more treason in the eye of 
law, than the evidence of a crime is the crime 
itself. If the charge of an overt act of treason 
were equivalent to the specific charge of trea- 
son itself, then, instead of the ten or twelve 
treasons which I have enumerated, there would 
be thousands of treasons in the law, because 
there are a thousand acts which may amount 
to evidence that the crime was perpetrated. 
This would be to let in the whole host of con- 
structive treasons, which ^rere abolished by the 
statute of Edwaid 3rd. No oath could then 
be administered, which might not, per m^ 
furnish a relevant charge under the 52nd of 
the king; for the prosecutor would be at li- 
berty to say, that although no particular trea- 
son was sonified in the libel, the jury would 
discover th&t an overt act of some treason or 
another, fell under the obligation contained in 
it. This would be replacing the law in ex- 
actly the lame situation in which it was in 
England, previous to the statute of Edward 
3rd : and in which it was in Scotland, previ- 
ous to the union. 

What was the defect in the treason law of 
those periods? It was that the prosecutor 
char^ the accused with meditating or per- 
forming an act, such as subverting the cod* 
stitution, altering fundamental laws, and so 
forth, which he thought fit to denominate trea- 
' son ; and thus, almost any act might be con- 
strued into treason. These constructive tretk 
sons were abolished* and a strict and ttehnicil 



^003 57 GGORGE III, 



Trial ofAnirem M^Kiule^. 



C304 



defiottion of the erima substituted in their 
room; and, unless a person is accused of a 
treafon so defined, the accusation is good for 
nothing. The prosecutor Aust specify overt 
aeiSy but it wiU not do to specify them alone ; 
be must further aay what the particular treason 
is which be means to prove by them. In like 
nanner, in this case, the prosecutor must say 
not merely that the oath libelled on bound the 
taker to commit an overt act of treason, but 
what the particular treason was which it bound 
bim to commit. If it is not a relevant charge 
'Of treason to assert that a man conspired to 
subvert the constitution by physical force, 
neither can it be a relevant charge under this 
Statute that he administered an oath binding 
tbe taker to subvert the constitution by physi- 
cal force. The person w(io administered the 
«ath lOannot be dealt with more harshly than 
the ilraitor himself. If constructive treasons 
are abolished as to the one, they must be 
idiolished as to the other also. The law must 
be consistent with itself. 

I need scarcely refer your lordships to his- 
torical illustration in support of what I have 
said on the law of treason. You will remem- 
ber that, during the feeble and abject govem- 
SMUt of Kichard 2nd, certain questions were 
put to the judges, upon which they delivered 
answers. One of them was this. A statute 
had been made which had been supposed to 
be a subversion of the fundamental law of the 
Jnagdom, and an encroachment on the royal 
»power ; and a question was put, by command 
.l>f the king, ^' what punishment they deserved 
that compelled the -king to the making of that 
statute? Whereunto the judges gave answer, 
4hat they should suffer as tmitors/' There 
wsfe other eight answers that do not bear on 
the present question. Nobody will deny, that 
to compel the king to consent to a statute, may 
be an overt act of treason. To put him under 
>Sonstraint» is a common overt act of treason. 
Bot the judges, without regavd to the distinc- 
tion which I have adverted to, and confounding 
what may or may not be an act of treason 
.aecoffding to circumstanoes ; in other words, 
what may or may not be evidence of treason, 
.with the crime itself, they pronounced that the 
persons who compelled the king to make an 
improper statute were guilty of treason. Now 
I will read what sir Matthew Hale (vol. i, 
•p. 84.) says, with regard to the answer so 
given by those judges ; <' The king called to- 
gether the two chief justices, and divers others 
of the judges, and propounded divers questions 
touching the proceeding in that parliament, 
and the obtaining of that commission; and 
they gave many liberal answers, and among 
.tlie rest, ' Qnalem posnam mereotur, qui com- 

Sulerunt sive arctarant regem ad oonsentieo- 
um confectioni dictonim statuti, ordinationis, 
etcommissionis? Ad qoam questionem una- 
nimit^r respondenint, quod sunt, ut proditores, 
rneritb puniendi. Item qualitSr suni illi pu-» 
Hiendi, qui impediverunt regem, quo minus 
potertkt exeiosre qyis i|d regalia et pmrogati- 



vam suam pertinoeruntF Unanimit^r etiam 
respondenint, quod sunt, ut proditores, etiam 
puniendi,' with divers other questions, and 
answers to the like purpose.'' That is the very 
answer I read from the State Trials. You see 
what he says, '' This extravagant as well as 
extrajudicial declaration of treason, by these 
judges, gave presently an universal offence to 
the kingdom; for presently it bred a great 
insecurity to all persons : and in the next ^^^ 
\ivnsuicraitmopufificationis 11th R. 2nd, there 
were divers appeals of treasons, by certain 
lords appellors, wherein many were convict of 
high U'eason, under general words of accroack' 
mg rot^alpotoery tubvertitig the realm, &c. : and 
among the rest, those very judges that thus 
liberally and arbitrarily expounded treason in 
answer to the king's questions, were, for that 
venr cause, adjudged guilty of high treason, 
and had judgment to be hanged, drawn, and 
quartered, though the execution was spared ; 
and they, having led the way, by an aroitrary 
construction of treason not within the statute, 
they fell under the same fate by the like arbi- 
trary construction of the crime of treason." 
And he adds again, 

*' Now, although the crime of high treason 
is the greatest crime against faith, duty, and 
human society, and brings with it the greatest 
and most fatal dangers to the government, 
peace, and happiness of a kingdom or state, 
and therefore is deservedly branded with the 
highest ignominy, and subjected to the greatest 
penalties that the law can inflict ; vet, bv these 
instances, and more of this kind that might be 
given, it appears, 1. How necessary it was, 
that there suould be some fixed and settled 
boundary for this great crime of treason, and 
of what great importance the statute of 25th 
£. 3rd was, in order to that end. 2. How 
dangerous it is to depart from the letter of that 
statute, and to multiply and enhance crimes 
into treason by ambiguous and general words, 
as accroaching of royal power, nwveriing qfjw- 
damental laws, and the like ; and 3. How dan- 
gerous it is, by construction and analogy, to 
make treasons, where the letter of the law has 
not done it ; for such a method admits of no 
limits or bounds, but runs as far as the wit and 
invention of accusers, and the odiousness and 
detestation of persons accused will carry men.^ 

The venerable author here declares, that all 
accusations of this kind, such as encroaching 
on the royal power, or subverting the funda- 
mental laws of the realm, are too vague as 
charges of treason ; and that the answer which 
those judges gave is worthy of the highest re- 
probation, and was given in opposition to the 
statute of Edward 3rd. He never speaks upon 
the subject, throughout the whole course of his 
work, without animadverting, in terms equally 
severe* on the- conduct of those judges. At 
page 266, he s^ys, that *' although the statutes 
of Richard are repealed as to the new treasops 
which they introduced, yet still they are of 
force and efficacy to the damning of those ex« 
travagant opinions and declaraticms.^ Now I 



3051 



Jbt AdtumtUring utdawfiA Oath*. 



A. D. 1817. 



[306 



entreat your lordships to turn to the present 
il^dictment, aod see what it is that the public 
prosecutor calls upon you to declare to be trea- 
son in this case. One would suppose he had 
purposely used the very terms which sir Mat- 
thew Hale has branded with his stigma. 
** Which oath, or engagement, or obligation, 
to the foregoing purport, did bind, or did pur- 
port or intend to bind the persons taking the 
same, to commit treason, by effecting by phy- 
sical force, the subversion of the established 
goTemment, laws, and constitutioQ of this 
kingdom." 

Are you not here called upon to declare, 
that subverting the realm* or the fundamental 
laws of the realm, is treason ? Are you not 
called upon to enhance an act into treason by 
ambigoous and general words? When his 
lordship requires you to find this indictment 
relevant, he requires you to make the very 
same answer which the English judges did in 
the reign of Richard 2nd, and which sir Mat- 
Aew Hale so strongly reprobates — ^an answer, 
•n account of which one of those unhappy 
fudges was dragged to the gibbet, and aU of 
them held up to the execration of posterity. 

I may illustrate this proposition in another 
way more fiuniliar to your lordships, by re-» 
€erring to our own, instead of the English law. 
)f r. Hume expresses himself in the following 
words : — ^" I have said in the second place that 
a libel is not good, unless it give such an ac- 
count of the criminal deed as may distinguish 
Ifaia particular charge from all other instances of 
the same sort of crime, and thus bring the 
panel to the bar, sufficiently informed of that 
whereof he is accused ; otherwise the purpose 
would not be fulfilled, which the law enter- 
tains, in ordering the panel to be served with 
a copy of his libel, ana allowing him so many 
days to mak& preparation for his defence. In 
confirmation of this rule, M'Kenzie has rightly 
appealed to that statute respecting the crime 
of ibrestalling, which allows an offender in this 
sort to be indicted, generally, as known and 
leputed to be a common forestaller, without 
any more specif detail of his transgression ; 
thus plainly implying, that such a course of 
accusation is contrary to the tenor of our com- 
mon law, and is justifiable only under the au- 
thority of a positive enactment. It is certain, 
accoiuingly, with respect to any article of 
dittay, which is stated quite at large, without 
any reasonable specification of the time, place, 
or manner of the thicg which is alleged to have 
heett done, that the panel cannot be put on 
hia defence against it.*" 

Now I should like to know what species of 
tieason-^in the words of Mr. Hume, " what 
tort of the crime,*' the lord advocate had in 
yn»Wj under the description of 6ffectin^, by 
phyaiqal force, the subversion of the estabbshed 
government. 

To obtain ahnual parliaments and universal 
iiifirage by violent and unlawful means, may 

* 3 Comm. 310. 
VOL. XXXIII. 



be overt acts of compassing the king's death* 
or of levying war, or of conspiring to levy war 
to obtain an alteration of the law. If the 
public prosecutor may have in view tliree dif- 
ferent treasons, distinct from each other, how 
is it possible, according to Mr. Home, that this 
can he a relevant indictment, when it does not 
specify which of them he had in view ? This 
argument, you will observe, is distinct from 
the other. Formerly I argued, that to libel an 
overt act of treason, is not to libel treason ; 
now I contend, in addition to that plea, that 
to libel treason is insufficient, unless the sort 
or species of the treason is also laid. And 
whatever holds with regard to a libel for trea- 
son, necessarily holds with regard to a libel 
for administering an oath binding to commit 
treason. 

But there is one consideration more, to shew 
you the extreme danger of admitting charges 
of constructive treason ; and it is this, that the 
facts here represented as overt acts of treason, 
do not in reality amount to treason, or afford 
any evidence of the existence of treason. In 
truth, the law, the constitution, and the govern- 
ment, may be subverted by violent means, and 
yet no treason be committed. It is no matter 
that the case is not very probable ; it is quite 
sufficient for my present purpose, that it is 
merely possible. Suppose the case, that an 
individual robs the Bank, and bribes parliament 
to make the government despotic, where is the 
lawyer who will affirm this to be treason under 
the 25th Edward 3rd P Suppose that an in- 
dividual compels a judge, by violence, to grant 
criminal warrants for arresting illegally certain 
members of parliament, in consequence of which 
they are prevented from voting against 
universal suffrage and annual parliaments. 
This is not levying war to put constraint upon 
parliament, under the 36th 6f the king ; for the 
act of an unarmed individual, as we shall suppose 
him, caunot be the levying of war. Yet nere 
the constitution is overturned by violent and 
unlawful means, without the commission of 
treason. These are examples to show the 
danger of departing from the salutary principle 
of the law of England, that where treason is 
charged, it shall be accurately specified. If 
you depart from that principle, and find the 
present indictment relevant, you overturn the 
whole law of treason — you let in all the con- 
structive treason which existed before the 25th. 
of Edward the 3rd and the security which the 
subjflbts of this kingdom deriwd from that ex- 
cellent statute will be destroyed. 

One circumstance I had nearly forgot to 
mention. It is only another instance of the 
extreme inaccuracy with which this indictment 
is framed. It was pointed out the last time we 
were before your lordships ; but the public 
prosecutor has not corrected the error. The 
terms of the oath, as he has stated it, in the 
third clause, are, ** and that I will support the 
same to the utmost of my ppwer, either by 
moral or physical iireneth, as the case may re- 
quire ;'' and yet, when he comes to mention the 

X 



JTOTJ 



57 GCOROE m. 



Iriai afAndrOo StlOidtjfk 



C30» 



rmport of the oath, in the subsequent part of 
the indictment, he says the obligation was, to 
use physical^/brcf . Now, you see he does not 
do this ^carelessly or unintentionally; for he 
repeats it after his attention had been expressly 
called to It by the prisoner and by your lord- 
ships; and his doing so is just saying he thinks 
himself entitled to substitute one word for 
another, although they are of an import ma- 
terially different. If he is to be indulged with 
that liberty, it is in Tain to talk of construction 
at all, for he may make any oath signify ^at 
he pleases. Strength and force are undoubtedly 
two different things, as was well illustrated by 
Mr. Clerk on a former occasion.* 

The grounds then, I go upon, are these. 
Finty I maintain that this is an accusation of 
treason, which cannot be tried in the present 
form. Secondly, That the obligation contained 
ki this oath, with the exception of a misde- 
meanor, does not infer any thing criminal ; and 
that even if it did, it does not necessarily infer 
any thing treasonable. Thirdly, That the 
leaning which the prosecutor extracts from 
the oath, is not the meaning that, by any fair 
construction, it can bear. And Lastly, Sup* 
posing it did bear his meaning, that the acts, 
which he says amount to treason, do not 
amount to it. The indictment is altogether er- 
roneous; -the obligation whidi it affirms the 
4ath imposed, is not affirmed to be a specific 
ti^ason properly defined ; and, in fact^ it may 
be no treason at all. 

- There is another objection to this indictment 
of a nature a little more subtle, and which 
fests on a principle of the law of England ap- 
plicable to this statute. If you give leave to 
ine of my brethren to address you on the sub- 
ject, that objection may be stated to you with 
more effect. On a former day, your lordships 
stated that it was your rule to allow several 
counsel for the panel to speak in succession at 
the commencement of the argument on the 
relevancy ; and it is because I am not so well 
qualified to do justice to this point, that I 
would rather devolve it on another, who is 
more conversant in English law. The objec- 
tion rests on two or three propositions. It is 
well established in common law, that felony 
merges in treason; and when, from the evidence 
ita a trial on a charge of felony, treason appears 
to have been committed, the trial cannot pro- 
ceed for the felony. Now here, the conclusion 
of the broseeutor is, that the oath was 
trmtcrouJy aidministered ; and the oveit act 
refers to an oath which would in itself, if ad- 
ministered or taken, amount, uecordaig to the 
proieeutcr, to the crime of high treason. It is 
no answer to say, that the statute here enacts 
that an oath binding to commit treason should 
be held to be felony ; for this reason, that it is 
dnother principle of the law, that whereShe 
legislature declares a certain act to be felony, 
it shall be held not to have been treason before 
the statute. There might be many* oaths 



■MB 



See the preceding eayev 



I Inndingto commit treasoswlndi oatliB mig^t be 
taken without the taker actually conumtting 
treason by so swearing. An oath to levy war 
for destroying stocking-frames,, may not be 
treason, whereas other oaths binding to commit a 
treason, in the very act of administration or of 
taking, form treason of themselves. The legis* 
lature might have in view only the species of 
oaths, which binding to commit treason, do- 
not, in the administrating of them, infer the 
commission of treason. Another rule is, that 
where there are two statutes relative to any 
matter, and the one does not repeal the other,, 
they must be interpreted so that the one nsay 
be consistent vrith the other. Statutes, there- 
fore, as'to treason, which have passed since the 
statute of Edward 3rd, must be construed, if 
possible, so as to be consistent with the latter. 
This limits, therefore, the statute of the Mndi 
of the king, to those oaths only which are ad-* 
ministered witliout the commission of treason, 
at the time of administration ; and, in common 
sense, it could not otherwise be interpreted 
without endangering the whole fabric of the> 
constitution. What would be the consequence 
were the case otherwise ? A person adminisNT 
tering an oath, the very administration of 
which is treasonable, might be protected fronr 
a prosecution for treason, by an indictment 
bemg served ujf)on him under the statute. It 
is plain, therefore, that this statute, in so for as 
treason is concerned, can only apply to oaths 
binding to that species of treason in whiob 
the taking of the oath is not of itself treason. 
These principles will be illustrated more at 
length to you by Mr. Grant, and supported by 
authorities. 

Upon an these grounds taken together, we sub- 
mit that this indictment is as objectionable as 
the former, and that the prisoner, therefore, 
should be dismissed from tne bar. 

Lord Jtatice Ocr^.— Before Mr. Clerk is 
precluded from making any observations o» 
the subject, I think it right to direct bis attes- 
tion to a circumstance which has occurred te 
the Court, as deserving the ponsideratien of 
boUi parties. In reference to all the four par- 
tieukur charges, as to the administration of this 
alleged unlawful oath, this indicttpeat con- 
clndes in these words : — ** The said oath,, or 
engagement, or obligation to the said purport, 
binding the persons taking the same to commit 
treason, as said is.*' These are not the words 
used ie the conclusion of that part of the in* 
dictment which follows the recital of the ottdi : 
" which oath, or engagement^ or obligatioe'to 
the foregoing purport; did bind, or did purport 
or intend to bmd, the persons taking the same 
to commit treason, by effecting, l^ physical 
force, the subversion of the established goveiiK* 
ment, laws, and constitution of this ktogd4un> 
and es{)eciallv by obtaining annual parliament* 
and universal stmrage, by unlawfbl and violent 
means.*' In the four .particular instances of 
the administration of the oath specified in the 
indictment, neitbes ^ purpotting,'' nor ** in* 



909] 



inlaitofd Oaths. 



A. a 1817. 



Imduig,'* tre mentioned, which are the words 
of the statute. 

I tlunk it right to bring this under the ob* 
aenratioD of the bar. Ibe objection was al- 
ready in your lordship's yiew. 

Mr. GfWit, — ^If in a case of this extreme 
anxietjy my attention could be directed to any 
thing personal to myself, I should certainly 
leel under the greatest embarrassment, in ad- 
dressing your lordships, after the speech which 
you have just heard. I cannot, however, on 
the present occasion^ feel the least concern for 
any thing that belongs to myself. Not Only is 
this case one of great anxiety, as it involres 
the lives of the unfortunate men who are to be 
tried for the crimes which are charged in this 
indictment; but I regard it as one of the 
createst importance in point of law. It is, so 
far as I know, the first case in which the Court 
of Justiciary in Scotland has been called upon 
to decide on a question of treason, according 
to the principles of the law of England re- 
garding treason, which were imported (if I may 
use the expression) into this country imme- 
diately after the act of Union between England 
and Scotland. 

I am bound to believe that your lordships 
are conversant with the English authorities 
«pon this subject, because you are bound to ad- 
minister the law according to these authorities ; 
and, therefore, when- 1 refer to them, and when 
I address to your lordships the same sort of 
itfgument which I should address to the courts 
elsewhere, I am aware, that not only no 
apology is necessary for doing so, but that it 
is my bounden duty so to do, because these 
are authorities in the law of Scotland. When 
I say this, I do not mean to assort so un- 
reasonable a proposition as that it can be ex- 
pected from your lordships that you should be 
as intimately acquainted with the phraseology 
of this part of the law, and with the cases by 
which Jt is governed, as you are with the 
phraseology and esta'bUshed practice of the law 
of Scotland, as it applies to the cases which 
generally come before you. 

Therefore, when I request your attention to 
Ac alignment which it is my duty to state to 
.you, I am aware that I demand of your lord- 
ships an attention to a subject with which you 
cannot bl so thoroughly familiar as you are 
with any other branch of the law which you 
administer; and I am also but too sensible, 
that I am not capable of either explaining or 
supporting my argument in the manner which 
the deep importance of the case demands. 

I am b6und to perform my duty in the best 
manner I can ; but, I confess, I feel an un- 
common degree of anxiety on the subject, be- 
cause, having considered it with die utmost at- 
tention of which I am capable, I am satisfied, 
in my own mind, that I cannot fail in esta- 
blishrag the propositions which I have to an- 
nounce, except from a want of that talent for 
eiplanatioB and expontion which the subject 
reqmres. 



[310 



I have to lay down certain propositions; in 
supporting which, I hope that though I shall 
have occasion to refer to several authorities, I 
shall not have occasion to quote them at such 
leneth as to occupy very much of your time; 
and I am the more disposed not to eucroach 
jpon it, as your attention must be exhausted 
from what you have heard, and as I have tlie 
disadvantage of addressing you after so able 
and luminous a speech as that which Mr. 
Cranstoun has just aelivered. 

I am first to maintain, what I think will be 
conceded, that, 'whether this oath do or do not 
^to the commission of treason, is a question qf 
JEngUth law. ^ * » ./ 

1 shaU next state to youi' lordships, and I 
think I shall satisfactorily prove to you, that it 
isamaxim, in the law qf England, that an^tqf 
liigh treason cannot be tried as a felony. 

I shall then state to your lordships, that thk 
opplies still more rirongfyto cases tried in Scot^ 
landr^ioT, whereas, in England, a case amount- 
ing to high treason upon the evidence, cannot 
be tried as a felony, and no judgment can be 
given upon such a case, but the person ac- 
cused is entitled to be acquitted upon such a 
trial, although the form of trial in cases of 
felony does not differ so essentially from that 
m cases of high treason as it does in Scotland 
^how mu6h more strongly must this apply in 
Scotland^ where the whole form of your pro- 
cedure in cases of treason is distinguished by 
a positive statute, from your forms in trials for 
other crimes. By a positive statute, your 
lordships, sitting as you are now, cannot try 
an offence which amounts, according to the 
statement of the public prosecutor, to high 
treason, by the machinery which you are now 
employing—you cannot try it on the indict- 
ment of the lord advocate. You can try it 
only on the indictment of a grand jury, and 
by that course and form of proceeding which 
would be pursued by the court of KingVbench 
in England. 

Then, I shall submit, that this is your situa- 
tion at present, unless it can be shewn that there 
umv thing in thU act of the 52nd qf the Kinsr, 
wh9ch has abrogated that rule of the common law, 
and repealed that statute; and, I think, I shall 
satisfy your lordships, that there is nothing in 
this act of Parliament that does so abr^ate the 
common law, or repeal that statute. There is 
nothing in this act from which we can infer 
that it was the intention of the legislature to 
do either : on the contrary, it is impossible to 
infer from this act any such intention without 
the greatest absurdity; and the greatest in- 
justioe and wrong would be introduced by so 
doing. 

If I make out these propositions, I shall 
succeed in shewing to your lordships that this 
is not a relevant indictment; and that it is not 
a relevant indictment, not only because it does 
not sufficiently specify and charge any treason, 
but because the public prosecutor is in this 
dilemma, that, if it does, he cannot try the 
oiTeDCe in this shape. I desire him to take his 



311 J 57 GEORGE III. 



Trial of Andrew M'Kinley 



r3i3 



^hoice of the two propositions. lie cannot 
maintain both. Either this which the oath 
bound to do is charged as treason or not — it is 
either a relevant charge as such, or not. It 
will not be said it is relevant to charge it as 
treason without words, which in their ordinary 
meaning amount to a description of some 
treason. Then I say, if they do not amount 
to a description of a treason, the libel is irrele- 
vant, upon the grounds which my friend Mr. 
Cranstouo has stated. If, upon the other 
hand, the prosecutor says, that the specific 
treason is here sufficiently alleged and set 
forth, I desire him to say, by what law he can 
try tins offence in this Court by this mode of 
proceeding. 

Without going over again the argument of 
my learned friend, which I should only weaken 
by attempting to resume it, I must, in support- 
ing my ovra views of the case for the sake of 
the argument, suppose that he has failed in his 
proposition. My intention is, to direct you to 
the other branch of the dilemma. If this in- 
dictment does imply a charge of treason, al- 
though the specific words which we say ought 
to be in the indictment are not used; then we 
ask. What sort of treason or overt act of 
treason do they charge ? It is said, that this 
oath was administered to a great number of 
persons, to many hundreds or thousands — 
that it was traitorously administered to them 
— and bound these many hundreds of persons 
to commit treason, *' by effecting, by physical 
force, the subversion of the established govem- 
ment, laws, and constitution of this Idngdoro ; 
and especially by obtaining annual parliaments 
and universal suffrage, by unlawfiil and violent 
means.'' If this means any treasoq, whatever, 
it can only mean the compamng and imagining 
the king's death ; or the treason mentioned in 
the 36th of the king — ^levying war, in order to 
compel his majesty to change his measures, or 
to constrain one or both houses of parliament. 
Now the compassing and imagining to levy this 
war, is, by the act of the 36th of the king, 
declared to be a treason. The administering 
this o^th, then, to give the prosecutor his own 
way, would be an overt act of such compass- 
ing, or of compassing the king's death. If so, 
it is an overt act of treason, and cannot be 
tried as a felony. (I would request of you, my 
lords, if I fail in any part of the argument 
which I am maintaining to make myself intel- 
ligible, to intimate to me when I do so; for I 
wisli to take up as little time, and to render 
myself as intelligible as possible.) I say it is 
a known rule of the law of England, that 
felony merges in treason — that treason drowns 
felony, {f a person is accused of felony, and, 
upon the evidence, it comes out to be an overt 
act of treason, be must be acquitted upon that 
trial. He cannot, by the law of England, be 
convicted upon an indictment of felony, where 
the crime amounts to an overt act of treason. 
This is a maxim in the law of England, of 
to ancient a date, that it is difficult to find it 
in the more modern authors^ in other than gene 



ral terms, because it is a proposition which ni>- 
body has ever ventured to dispute. If we 
turn to the Year-Book 31 Hen. 6th. we find 
that the greater offence drowns the less — ^And 
this is a general maxim. For instance, tres- 
pass is extinct in felony. Suppose goods are 
taken, and an action of trespass is brought for 
them, if, upon the evidence, it appears that the 
crime amounts to felony, the prisoner roust be 
acquiVlted of the trespass, because the felony 
drowns the trespass — the trespass merges in 
the felony ; and he must be acquitted of the 
trespass and re-indicted for the felony. The 
Year-Book 31 Hen, 6th. 15,* says, "It was 
agreed that in case of a robbery, the person 
robbed shall not have an action of trespass for 
the goods, for the trespass is extinct in the 
felony, et ornne magus trahit ad se minus,*' 
Where an action of trespass was brought by a 
husband for beatiug his wife, whereby she 
died ; the action vras found not to lie, because 
the crime was a felony.f The policy of the 
law is stated by Mr. Justice Jones in Dawkes 
r. Coveneigh.t "If the party robbed may 
have his election, either to indict the felon, or 
to have his action of trespass ; this would 
prove very dangerous.'' And the Chief Jns* 
tice Roll gives the same reason. Many felo- 
nies would thus be smothered'. By the law of 
England, your lordships know, these are 
popular actions. Where there are popnlar 
actions, persons, from many motives, would 
indict for the lower offence. But the law says. 
No. If the evidence shew that a greater sort 
of offence has been committed than that which 
is charged, the person tried must be acquitted 
on the indictment for the lesser offence, and he 
must be re-tried for the greater offence, and 
the prosecutor shall not have power to choose 
the tower, so as to dispense with a trial for 
the higher. 

You are aware, my lords, that treason, by 
the law of England, is not confined to what 
we commonly call treason. It consists of two 
sorts, high and petit treason. Petit treason is 
the murder of a husband by his wife, or a 
master by his servant. It has been decided, 
where, upon an indictment of murder, it came 
out to be a case of petit treason, that the per- 
son must be acquitted on that indictment,' 
because the felony is merged in th\e petit trea- 
son. If this is the case as to petit treason, 
still more must it be so as to high treason. 

I am aware that Mr. Justice Foster (as to 
whose opinion I shall speak presently) doubts 
the authority of the case in which this was 
said to be determined ; and, he says, that, be- 
cause petit treason and murder are of the 
same nature, and petit treason is considered in 
law only as an aggravated species of murder, 
the murder shall not be merged in the petit 
treason. But what does he say he would do 
himself? Does he say he would direct a ver- 

♦ Quoted in Bro. Ab. 145, voce Trespass, 
t Huggins' Case, 4 Jac. 1 ; 2 Ro. Ab. 557. 
J Sty. 247, 



3] 3 J 



far AJbrnnidtring unla»/kl Oaths. 



A. D. 1817. 



1314 



diet of guilty of murder on sach lodictmcDt ? 
Ue says> that be would not direct an acquittal 
for fear the acquittal of the petit treason 
might be pleaded against a new indictment for 
murder; out that be would discharge the jury 
of the indictment altogether, and would direct 
a re-indictment fm the petit t^ason ; for that 
a. prisoner is entitled, when treason is charged 
against him, to the forms and privileges of a 
treason trial, his peremptory challenges, two 
witnesses, &c. &c. And, therefore, says the 
judge, I would discharge this indictment, and 
I would again direct an indictment for the 
petit treason. 

There is not a case in the books, of a rer- 
did boring been pronounced for murder when 
the ^tB amounted to petit treason. I have 
not found such a case alluded to; but I find 
the above opinion of this judge as to the case 
of petit treason, which is only an aggravated 
species of homicide. When other authori- 
ties say, generally, a person charged with the 
lower crime should be acquitted, that judge 
says, he would, in the case of pietit treason, 
dischaige the jury. He does not say he would 
desire him to be acquitted for the reason I 
have stated; but he says, though the two 
crimes are the same in substance, petit treason 
b^ng an aggravated species of murder, he 
would not put the culprit to his trial where the 
prosecutor ought to nave indicted for petit 
treason, and Sie prisoner is entitled to that 
mode of trial which is appointed for every 
qiecies of treason. 

All these arguments apply more strongly to 
high treason than to petit treason. It is trae, 
in high treason, the penalty is greater^— the 
forfeitures are different. But so they are in 
petit treason.— In the case of a woman, the 
judgment in petit treason was, that she riiould 
be burned to deaih. fiut the principle is, 
that on account of the odiousness of the crime 
of high treason, the attention of government 
to put it down is more excited, than with re- 
gard to other crimes : and, in proportion as 
Siis operates on one side to increase the pen- 
alty, the law watches over the pasoner on 
the other, and gives him peculiar privileges in 
his trial. — And the judges hold themselves 
'hound not to balance between the two classes 
of cases — they l^old themselves bound to ex- 
ecute the law a:t it stands ; and they think 
that the law has)udged wisely, and that it is a 
great advantage to the prisoner that he should 
be tried according to the mode of trial ap- 
pointed by the. law, though it be attended 
with the dtfadvantage of greater punishment 
in the event of his guilt being established. 

On this subject, I think, I need do nothing 
more than shortly cite some authorities to vour 
lordships. First, I shall cite a case where 
there vras a trial for murder; and the cir- 
cumstances having amounted to petit treason, 
the prisoner was acquitted, ana a trial was 
ordered for the petit * treason. That case is 
mentioned in the State Trials, vol. 6th, in the 
cascof Coke andWoodbume. Ilwasaease tried 



in 1718, and cited by the prisoner Coke in his 
defence.* It was said to nave occurred at the 
assixes; and on a conference with all the 
judges, an acquittal was directed, and the 
culprit was re-indicted for petit treason, con- 
victed, and executed. I need go no further 
to shew, that if the facts had amounted on an 
indictment of murder, or other felony, not to 
petit treason, but to high treason, an acquit- 
tal must have been directed. In a case in 
Dyer's Reports, page 50, a, a general pardon 
having been granted, of all treasons and 
felonies, with the exception of murder, it was 
found, that petit treason was not within the 
exception, but within the pardon. 

I observe that the counsel for the Crown, in 
the case of Coke and Woodburae, three of 
them, very learned persons, admitted that the 
case cited, as decid^ in 1712, was good law. 
They admitted, that the killing a husband or 
a master could not be tried on an indictment 
of murder, because a different and distinct 
offence. The Chief Justice did not deny, but 
seemed to admit this as good law. Whether 
that case had been so decided, was a qoestioD 
of fact ; and you will observe that this case of 
Coke and Woodbume, in which it was cited, 
was tried in 1721, between eight and nine 
years after the opinions of all the judges in 
the case cited, were supposed to have been 
given; so that it is not easily conceivable, that 
if there had been any error m point of fact, it 
would not liave been noticed. But, having 
mentioned this case, it is proper to take notice 
of a passage in Mr. Justice Foster's second dis- 
course on Crown Law, page 326. It is as follows : 

** While the case of the King against Svran, 
reported before, was depending, and before 
the second bill was preferred, a question was 
made, whether Swan could be convicted on 
the indictment for murder, if it should come 
out in evidence that he was servant to the 
deceased at the time the fact was contrived or 
committed? and, consequently, that this 
offence was petit treason. * 

*" There is a case cited (6 State Tr. 224 .)» 
in tlie printed trial of Coke and Woodbume' 
which (if Much case there ever vhu) hath, as iar 
as the authority of it goeth, determined that 
question. At the summer assizes at borches« 
ter, 1712, a woman was indicted before Mr. 
Justice £yre, for the murder of another wo- 
man; upon evidence it appeared, that Ihe 
person murdered was her mistress, which 
made the crime petit treason. The Judee 
directed this matter to be specially found; 
and, upon conference with all the Judges, it 
was holden, she ought to be acquitted upon 
this indictment, as she accordingly was, and 
was afterwards indicted for petit treason, and 
convicted and executed. This case is not to 
be found in any report printed or MS. that I 
have met with, or heard of; nor have I, upon 
a strict inquiry, met with any footsteps of 
such case, among the minutes of proceedingg 

• 16 How, St. Tr. 84. 



8151 



ffl GEORGE III. 



Trial ofAnireiA M'Kmkif 



rsia 



on the Cfown side, in tbe cOQoty where 
the caae is supposed to have arisen, though 
tiie minutes, from 1708 to 1722, have been 
earefullj searched. For these reasons, and 
what is suggested in the marginal note, I con- 
clude that no such case ever existed. Lord 
Chief Justice Hale is very full and express on 
tbe other side of the question : that a person 
who is guilty o^ petit treason may be indicted 
•f murder, for it is a species of murder ; and 
a pardon of murder pardoneth petit treason." 

1 quote this passage for the purpose of 
•hewing^ that the learned Judge's only difficul- 
ty was, that petit treason was a species of 
murder; but he never c^uestioned that, gene* 
rally speakiUg, any mmor offence should 
Qierge in the greater on^ of treason. 

Then he goes on to say, ^ But though I am 
satisfied, that the law considereth petit treason 
and murder as one offence, differing only in 
mrcumstance and degree ;«yet, whether it may 
be advisable to proceed, upon an indictment 
for murder, against a person plainly appear*- 
ing to be guilty of petit treason, is a matter 
that deserveih great consideration, and pro- 
bably determined the attorn^-general to 
prefer a fresh bill for petit treason m Swan's * 
case; for, though tbe offences are, to most 
purposes, considered as substantially the same, 
yet, as there is tome difference between theiti 
with regard to the judgment that is to be pro- 
nounced upon a conviction, and & very mate- 
rial one vrith regard to the trial, a person 
indicted for petit treason being entitled to a 
peremptory chaUenge qf 35, 1 think, if the pro- 
secutor be apprised of the true state of the 
case, as he may be if he useth due diligence, 
be ought to adapt the indictment to the truth 
of the fact. 

<' But if, through a mistake on the part of 
the prosecutor, or through the ignorance or. 
inattention of the officer, a bill be preferred 
as for murder, and it shall come out in evidence 
that the prisoner stood in that sort of relation 
to the deceased which rendereth the offence 
petit treason, I do not think it by any means 
advisable, t6 direct the jury to give a verdict 
•of acquittal; for a person charged with a 
crime of so heinous a nature ought not to have 
the chance given him, by the <Jourt, of avail- 
ing himself of a plea of auterfbits acquit. 
In such a case, I should make no sort of 
difficulty of discharging the jury of that 
indictment and ordering a fresh indictment 
for petit treason.f In this method the pri- 
soner will have advantage of his peremptory 
challenged, and the public, justice will not 
suffer. And, on the other hand, in case of 
an indictment for petit treason, if it be proved 
that the defendant killed the deceasea vritb 
Auch circumstances of malice as amount to 

murder, but the relation of servant, &c. is not 

■ ■■ ■' ■■- ■ ^~^^— ■' " 

•l8How. St.Tr. 1198. 
. t See the case of Penelope Edwards, cordm 
Lawfenoe^ J. 6 CkUw. Btim^ 467, ed> of 1620; 
iKufi. 695 



proved, I have no sort of doubt that, on suck 
an indictment, tbe defendant may be found 

Jfuilty of murder, and acquitted of tbe treason, 
or murder is included in every charge of petit 
treason,./^toic^ proditorie et ex malitid pr^ea^i* 

taid MUaDRAVIT." 

Upon this it may be observed. First, that 
although Judge Foster considers murder and 
petit treason offences of the same nature, so 
much so, that on an indictment for petit 
treason, a verdict may be found for murder, 
yet the greater advantages afforded by law to 
the prisoner on the trial — ^the peremptory 
challenge of 35 of the jury — tlie requiring two 
witnesses — and other circumstances— entitle a 

Erisoner to be indicted for petit treason, if 
is offence actually amount to that descrip- 
tion ; and if it do amount to that description, 
and so comes out in evidence, but through 
mistake, or ignorance, or inattention of the 
prosecutor, the indictment is preferred as for 
murder, the prisoner is entitled to have that 
indictment dismissed. Secondly, If petit 
treason were to be considered as a distinct 
and higher species of offence, it is clear, in 
Judge Fosters opinion, there would be no 
doubt whatever but the prisoner, under such 
circumstances, must be acquitted. 

But there are abundant authorities to shew 
that this has ever been the doctrine of the law 
of England. Thus, in the Year-Book, S. 
Henry 7th 10. where there was a question 
about an accessary in the harbouring one 
guilty of treason (your lordships know, that 
in felony there may be accessanes by the law 
of England, but in treason they are all prin- 
cipals). Chief Justice Hussey says, " l^ere 
can be no accessary in treason ; tbe receiving 
a traitor cannot be only a felony, but is treason 
et in catu ibidem,*^ 

Thus, Saccombe's case, 33. Henry 8th is 
thus reported by Lord Chief Justice Dyer.* 
^* A woman had poisoned her husband, which 
offence is made treason about the 31st Henry 
8th (22d Henry 8th.); and by the general 
pardon granted by parliament in 32nd Heniy 
8th this « offence was pardbned. Now the 
son had brought an appeal against the wife ; 
the question was, whether this appeal lies, and 
some thought that because the offence is made 
treason, it mergeth each lesser crime as the 
crime of murder, which was before at common 
law, and so the offence is no^ punishable as 
murder, but as treason, and so no appeal lies. 
But aome were of a contrary opinion, &c. 
But the opinion of the judges was, that the 
appeal was not maintainablo/' And the re- 
porter refers to the case 3 H • 7. above stated. 

And in Coke's report in the cases of par- 
dons, 29th Elizabeth f it is laid down, '' If 
murder or petit treason be made high treason, 
thereby the murder or petit treason is ex- 
tinct, for high treason doth drown every less 

offence.'' 

■^— ^— <■— 1.11 . 1— ..— ^iM.^wf.1*—— 

• Dy . 50, «. 
'|*6rRep. 13^6* 



arr\ 



Jot Aimiiaiiknmg 'wAeltffA Ooths. 



A. O. 1817. 



D318; 



And Judge Foster^ niiMe opinioD that 
murder is not memd in petit treason I hare 
already noticed, referring to Saccombe's cafse, 
which I have jnst read to yonr lordships from 
the report of my Lord Chief Justice Dyer, and 
denying its aothoiity to prove that murder is 
nexged in petit treason, expressly founds on 
it as an aathority to shew that all inferior fe" 
lenies are merged and extingoished in the 
ofience of high treason; and that when an 
oflence amounts to high treason, a trial for 
fieiony is i»an«d. 

I read from the same dissertation I have 
already quoted. 

** Theve is a case in Dyer," says the learned 
judge, ** wUch has been thought to fevour the 
opinion, that the crime of murder is merged in 
petit treason ; and that a pardon of treason 
discharged it, notwithstandmg the ezceptioo 
of murder ; but that case proveth nodiing like 
it. A wife, about the 3l8t Henry 8th poi- 
soned her husband. Then came a general 
pardon, by which treason was pardoned, but 
with an exception of wilfol murder. The 
heir brought an appeal of murder against the 
wile, and it was adjudged that the appeal did 
not lie. This case doth not prove that mur- 
der is merged in petit treason, but that both 
murder aiui petit treason were merged and 
extinguished m the offence of high treason ; 
for at Aat time, by virtue of the 22nd Henry 
8tb, all wilful poisoning was high treason, and 
being so, the appeal, not being saved by the 
act, was barred whether the treasoa had been 
pardoned or not.'** 

I mention these caftes to shew, that the doc- 
trine of the law of England is, that the minor 
ofieooe merges in the higher offence. I need 
not trouble your lordships with further au- 
thorities upon this subject. I think what I 
have stated is suflBcieot to prove tl^e general 
ufroporition, that, by the common law of Eng- 
land, all feloities merge in the offence of 
high treason ; and that an act, amounting in 
its circumstances to high treason, cannot, by 
the law of England, be tried as a felony* 

But I would now beg to call your attention 
Jto this, which I think very material in the pre*-' 
sent case ; that the argument is stronger iQ 
Scotland, under the act of queen Anne, uan in 
England under the common law. You know, 
dkat by the act of queen Anne f whidi was 
passed after the Union, and under powers re- 
served in the act of Union, the whole law of 
England, upon the subject of treason, has been 
imported into Scotland. The mode of trial has 
been imported — and od this subject Aete are 
two clanses to be adverted to. One is per- 
Bnssive to the queen, and her heirs, who may 
direct a commimion of oyer and terminer, to 
try treason in Scotland. The other is impera- 
tive, and requires your lordshipd in this 
Court to inquire of all treasons in the same 
manner as the Court of King's-bench/ The 



♦ Post. Cr. Iaw 325» + 7 Anne, c. 21. 



third faction enacts, That the ^ Justice Court 
of Scotland shall have fiiU power and anthori^s 
and ers Acnefty reqwtd to inquire by the oathft 
of twelve good and lawful men of me county^ 
shire, or stewartry, where the respective courts 
shall sit, of all high treasons and misprisions oC 
high treason committed within the said county^ 
&C.; and thereupon to proceed, hear, and de^ 
termine " (that is, they aie regnarad to proceed^ 
hear, and determine) ^'the said offences 
whereof any person shall be indicted before 
them, in such manner as the Court of Queeh*»« 
bench, or the justices of oyer and terminer ia 
England, may do by the laws of England.'' 

So that here is a pdsitive statute requiriiw 
this Court to proceed, and determine, accor£ 
ing to the forms of the King's-bench in Eugi 
land. And, it will be conceded, tlmt unless 
there are words in this act of the fi2nd of the 
king, sufficient to repeal the former enactment, 
it is not competent to this Court to inquiry 
into cases of treason, in anv other way thanr 
the courts of England would inquire. The 
words are imperative. The first clause might 
be interpvetea, ' as if a trial itaight take place 
according to the ancient forms ; but as to th^ 
second clause, there can be no doubt that it 
demands a contrary interpretation. > 

It were a waste of time to say a word 
further upon tlie subject, to prove to your 
lordships thai the rule of the common law of 
England as to trials for treason, and the regn« 
latiqns of the statute as to such triab in Sooti 
land, are as I have stated; And it would be ^ 
still greatier waiste of time to attempt to show^ 
after this statute of queen Anne, that if any 
treason appear upon the evidence, you connol 
proceed otoerwise than according to the forma 
of the law of En^and, in cases oi treason. 

We come,, therefore, to this aimple questioB. 
Does, this act of the 52nd of his majesty, on 
which the indictment is laid, aimount to an sJbm 
rogation of that rule of the common ' law of 
which I have spoken, or to a repeal of this act 
ef queen Anne? But, it is a rule that acts of par<» 
liament shall be interpreted according to the 
rules of the common law ; and my lonl Coke 
says, that, in particular cases, the words of an 
act tha\\ be restricted in order to bring them 
within the rule of the common law. lliere is 
no necessity for that here, where there are 
two acts of parliament, and no words in the 
second repealing the first. If the words of 
the second can admit a construction leaving 
the fonner free to operate, it is necessary so 
to construe it. It is necessary for the Crown 
counsel to show, either that there are words in 
the 52nd of the king, that repeal the act of 
queen Anne, or that that act of the 52nd of tlie 
king, cannot receive effect without such virtual 
repeal — ^tbat the evil which the act was made 
to control and remedy, could not be controlled 
and remedied, unless you were ta interpret the 
act as repealing eo much of the act ot queen 
Anne. 

If I can show, there is nothing in this act of 
the 5Snd of the king> in its fullest and most 



310] 



57 GEORGE III. 



THal ofAndrm MyKivky 



[320 



ample interpretation — ^in the purposes it em- 
braceSy or in contemplation could embrace — 
nothing that in the least interferes with the act of 
queen Anne, or the regularmodeof yourinqaiiy 
in any case of treason— then you are bound to 
give to this act of the 52nd of his majesty, no 
other interpretation than is consistent with the 
act of queen Anne, a statute which is funda- 
mentally connected with the constitution of 
Ihis country. No act, that is introduced for 
the benefit of the subject, is to be held re- 
pealed, but by the express words of some 
subsequent act — still less is an act to be so 
repealed, which is a fundamental law of the 
country. The law of queen Anne is as 
much a part of the act of Union, as if it 
had been inserted in it. It was passed in 
consequence of a power reserved by the act of 
Union* It is an act upon which the liberty and 
the safety of the subjects of this country de- 
pend, in cases in which the Crown may bring 
them to trial for the highest state offence. It 
is, therefore, a fundamental part of the law of 
the country. 

• For a particular purpose, that of putting 
down local disturbances in England, this act, 
the 62nd of Jthe king was passed ; and you are 
called upon by the Crown counsel, to give this 
act, intended for this purpose, containing no 
words of repeal of the act of Anne, nor incon- 
sistent with its provisions, an interpretation 
which is to subvert the form of trial for treason 
in this country. You cannot listen to the pro- 
position for a moment. 

Let us see what the 52nd of the king goes 
to. Its preamble is : ^ Whereas an act pass- 
ed in the 37th year of the reign of his present 
BMijesty, intituled, An act for more effectually. 

Ereventing the administering or taking of un- 
iwAil oaths: And whereas, it is expedient 
that more effectual provisions should be made 
as to certain oaths ; be it therefore enacted,*' 
fee. 

The intention of the act is the same with 
that of the 37th of the king, and it onlv ex- 
tends its provisions further. If you refer to 
the 37th of the king,«chapter 123, you will see 
what is the preamble of that act — you will 
there see the foundation of both : '^ Whereas 
divers wicked and evil-disposed persons have 
of late attempted to seduce persons serving in 
his majesty's forces, by sea and land, and 
others of his majesty's subjects, fcom their 
duty and allegiance to his majesty, nnd to in- 
cite them to acts of mutiny and sedition ; and 
have endeavoured to give effect to their wicked 
and traitorous proceedings, by imposing upon 
the persons whom th^ have attempted to se- 
duce the pretended obligation of oaths unlaw- 
fully admmistered ; be it enacted," &c. Both 
acts have the same object, and arise out of the 
same mischief. In the 37tb of the king, this 
is declared to be the attempts of evil-disposed 
persons,, to seduce persons serving in the 
forces, and others, to mutiny and sedition. In 
the 52nd of the king, the object and the mis- 
chief are. declared to be the same as in the 



former act. Reference is expressly made in 
the preamble to that former act, and it is 
added, " Whereas it is expedient, that mora 
effectual provisions should be made as to cer- 
tain oaths.*' 

So that both acts proceed upon a view of 
the legislature, to repress the attempts of per- 
sons setting about to excite others to mutiny 
and sedition; and the penalty for both admi- 
nistering and taking, by the first act, is the 
same; viz. transportation. In the second act, 
the odrnvrntening is death, without benefit of 
clergy. That is the difference between the 
two acts. The 52nd of the king, leaves the 
persons tMng the oath to the punishment of 
the 37th of the king ; but extends the punish* 
ment of adminutermg to death. And,' as to the 
37th of the king, are you to hold, it was the 
intention of the legislature to enable the 
courts to try those Kuiltv of a treasonable con- 
spiracy, as guilty of a relony,'punishable with 
transportation? I ask, if it is possible to con- 
ceive that it was the intention of the legisla- 
ture to abrogate the law of queen Anne in this 
instance? We are to gather the intentions 
of the legislature from the preambles of the 
acts, and we may throw light on them by the 
history of them when passed. We see the 
preambles — we know the circumstances in 
which they were passed — we know the 
object and intention of the legislature in 
framing them. And, from these considera^ 
tions, and transportation being the penalty 
enacted, X ask, are you to be told it was 
the intention of the legislature to repeal the 
material cUusjS of* the act of queen Anne, as 
to trials for high treason ? I say, tl^at cannot be 
maintained for a moment by any lawyer de- 
siring to have the reputation of common sense. 
It cannot be maintained, that either of the acts 
(that of the 37th, or of the 52nd) was intended 
to have any such effect. According to the 
prosecutor's interpretation of the acts, taking 
an oath to murder the king, might be tried as 
a common felony, — as a felony to be punished 
by transportation only. And can an oath to. 
commit the highest species of treason tliat 
would have the effect of overturning the whole 
government — an oath to commit the roost atro- 
cious of all crimes— was it the intention of the 
legislature to repeal the act which considers 
these deeds as the highest species of treason — 
(o repeal that act, and to make the taking 
of such oaths — and to make such conspira^ 
cies, a transportable felony? It cannot be 
maintained for a moment. Then what are the 
words of this act, that the prosecutor makei 
such a construction of it, as to th^ intention' of 
the legislature, and that without express words, 
of repeal ? I state confidently, that the statute, 
founaed on in the indictment, cannot be held 
to have repealed the statute as. to trial^. of 
treason : and there is an end of the. \ybole 
foundation of the argun^ent, that we can in-, 
vestigate this trial in the shape and form, in 
which it is prosecuted. 

I. apprehend, ^^at, iu interpreting this, act, 



m^ 



Jot' Administering titdatofut Oaths, 



A. D. 1817. 



[332 



tQ f^.^ ^ retates to t&e question, whether 
H^ n&9on ^ti within it, we musi again 
KaTl recoiiise to the law of England ; because 
'aloD^ with the introduction of the general law 
of treason jntb Scotland, we must hold, that 
the legislatuTe introduced the whole law of 
England, as applicable where treason is in 
question. The question, therefore, Whether, 
m sound construcUdn, this act applies to' a 
case of treaison? is a question of^interpreta- 
tion not merely by the law of Scotland, but 
Ify^ tH'e law of England ; and you will see at 
<^nce, that, if there were a difference in the 
niode of interpretation b^ the laws of the two 
coiuitries, the rules of interpretation in the 
English law, and aot those in the law of Scot- 
Uuid, must lie f<Alowed. There it no differ- 
ence in thie mode of interpretation by the two 
laws. Bnt, I know that, in the law of Eng- 
land, it is most distinctly laid down, that sub- 
septet acts of parliament are to be so expound- 
ed, chat they may not contradict former acts, 
^rhich they do not contain express Words to 
lepeal. Inus, in Roll's Reports,* an 61^ 
book in Norman French, th^ phraseology of 



the reason of the common law giveth gneat 
light; and the judges, as much as may be, 
follow the rule thereof. 

I would desire of your lordships to apply 
to the 52n4 of the king this rule, and to inter* 
pret it, as far as may be, agreeably to the rule 
of the common law, on the one side ^ and to, 
the statute of Anne, on the other side ; and 
see if they may subsist together/' 

It so hapjpens, that this is not the first oc- 
casion (there having been many instances^ in 
which acts have been passed, enacting into 
ifelonies, circumstances that appear very muck 
like overt acts of treason ; and lord Coke, in 
his exposition of the law of treason, has tliese 
words referred to by Qale : ** that the passing 
an act, making an offence felony, is held to be 
a judgment of parliament that it was not 
treason." 

' I would call ^our lordshins' attention to aiv 
act of parliament, which so tar as I know, has 
never oeen repealed, 3 lien. 7th. cb. 14» 
which recites, ^Forasmuch as by quarrels 
nii^e to such as have been in great authority, 
p&ce, and of council with kings of this realm 



which is abundantly quaint, it is laid dovrn as hath ensued the destruction of the kings and 
a general rule, ** Leges fosteriores priores amtrd' the undoing of this realm ; so as it hatli ap- 
rids ^rcgmitJ* But, it is said, ''This cannot peared evidently, when comjMSSing pf tM 
be by ambiguous, and general wpr^s.'' And, 
li iB^ added, '^ When two general statutes are 
mai^e^and fMie contradicts the .other,'' (U is 
meant to sajr^alvpatently contradicts), /Vboth, 
if ^ey can be, snaH be so expoimdisd that the 
tme^inay not ccptiadict the other. ^ And .a sub- 
nc^jiient act, wtuch can be reconciled with Uijb 
former, ihaU noi be a repeal of it.^ Api in 
Owh^ns's Digest, under the word parliament, 
iL d. tne Teamed ^uthor, treating of what shall 
be' a repeal of a statute, sa^s, '* A subsequent 
act which may be reconciUd with a former 
sh^ not be a repeal of it.'^t And he refers 
to a passage in lord Coke's Reports, whic|k I 
shaQ presently read. And he says, " Every 
statute ought to be expounded, not according 
io the letter^ but according to die intent," re- 
ferring to Roll and Plowdeo. And below, 
"The preamble is a good means for collecting 
tde intent.'* '^So the ground and cause of 
the making; of a statute explabs the intent." 
An^^ <«So a statute ought to be construed 
accoi^ing to the reason aiid rule of the 
comnibo law,'' referrin(^ again to Plowden. 
Ai^, ''So a case, ont^of the mischief intended 
to De^ remedied by a statute, shall be construed 
iol^'pfai of the purview, though it he within 



death c^f such as were of the ains'a true sub- 
jects was had, the destruction of the prince 
was imagined thereby ; and for the most part, 
it hath grown, and been occasioned bv envy 
and malice of the king's own household ser^ 
vant^, as now, of late, soch a thing was likely 
to have ensued ; and, forasmuch as, by the 
law of this land, if actual deeds be not had, 
tiiere is no remedy for sucb faUii comnassingf, 
imaginations, and cpnfed^^cies, bad ag^qst 
any lord, or any of the ^king's coi|ncil, or any 
of the king's great officers in bis houaehold« as 
steward, treasurer, ancl comptroller, and so 
great inconveniences might en^ue, if such 
unffodly demeaning slioul? notbe straitly pu- 
nished before that actual dee^ were done." 
Then it enacts, ** Tliat if any servant, admitted 
to be the king's servant,, sworn, ^ and his name 
put into the chequer-roU of his household, kc. 
make any confederacies, compassings, conspi- 
racies, or imaginations with any person o^ 
{>ersons, to destroy or murder the king, or any 
ord of Uiis realnu or other person sworn to the 
king'js council, &c. that the said offence be. 
judged felony ; and the misdoers to have judg*^ 
ment and. execution, ail felons attainted ought 
to have by the common law." Any servant of 




.^.^*i^. P-. ^i> ■>4»»>8f f>^ M «^tute of 
^Qofter, by wl^ch an action of waste is givep 

tlW^^^f?^^^ holdeth by law of England,-' 
tpifptiirten) .''or otberwise for term of life.*' 
say^ '^AlDeiL the assignee of the tenant bir 
tne e6axtj^ is. within the letter of this law, 
yet ho action bt waste shall be brought against 
the assignee, for in construction of statutes, 

' •Vol.2, p. lib. tVot5,318,ea.6fldSil 

vol/xxiii. 



i^ipords of the statntfs". and be quotes lord the king, entering into a conspiracy to destroy 
'^^'^^ ^nd liififi p. 33^ Aiid lord Coke, 'or muider the king, qr any lord of this, realm, 
^'^1 - *. .4 » shalllje judged guilty of feiony, and the bene- 

fit of dergy^ even is not excluded. 

So here is an act of jparl)ainant, deolaring»- 
that any of the king's hoiis^old, who sbaU 
conspire to murder him, may be punished 
with transportation. What is the observation, 
of my lord Coke upon this statute I He says, 
^ to destroy or murder the kin^. . By this act, 
it exprettly tgspeareih^ by the judgment of thfy 
whole paraSmentj that besides the confederacy, 
Y ♦ 



33a> ^ GEORGE tIL 



TtitA ^Awdr«» M*KU^ 



[$•4 



conspiracy, or imagination, there mast be 
some other overt act, or deed tending there- 
nnto, to make it treason within the statute of 
25th £dw. 3rd. And thertfore the bare con" 
Jkderact/f compaumg^ compiracyf or magmaiSanf 
by wordi onfy, it miuk feior^ by thii act. But, 
it* the conspirators do provide any weapon, or 
other thing, to accomplish their devilish intent, 
thUy and the Hke^ an overt act to make d trea- 
son." So that, though the words are so gene- 
ral, that, under the act of Hen. 7, a person 
might be indicted of felony for conspiring the 
death of the king, it had never entered into 
the head of lord i^oke, that, if this were mani- 
fested by an overt act, felony, and not trea- 
son, tiouid be the relevant charge. On the 
contrary, he expressly says, that, in order that 
a prosecution may take place upon that statute, 
ft is necessary that the act charged be not 
treason. 

Now, an oath administered to 500 persons, 
binding them to levy war against the aing, to 
control him, and oblige him to change his 
measures, or to control parliament, is an overt 
act of a trea56n created by the 36th ^of the 
king. ' In this respect, I cannot distinguish the 
case of the statute of Henry Tdi from the pre- 
sent ; and if, under the law of Henry 7th a 
man who had entered into a conspiracy to 
murder the king, coold not be tried for a 
transportable felony, neither could he under 
the prt'sent statute be so tried, having admi- 
nistered such an oath. * 

Lord Hale says, ''Regularly, words, unless 
committed to writing, are not an overt act 
within the statute of Edward 3rd, and the reason 
given is, because they are easily subject to be 
mistldcen or misapplied, or misrepeated or 
misunderstood by the hearers. And this ap- 
pears, by those several acts of parliament, 
which were temporary only, or made some 
words of -a high nature to be but felony. The 
statute of 3 Hen. 7thcapil4, makes conspiring 
the king's death to be felony ; which it woula 
not have done, if the bare conspiring, without 
an overt act, had been treason.'' 



In like manner, this act of the 52nd of the I the act of parliament, and it would be an 



king, makes the administering of an oath 
binding to commit any treason or murder, or 
any felony punishable by law with death, a 
felony ; which it would not have done, if the 
administering of that oath had been an overt 
act of hiffh treason. 

And that proposition includes this other, 
that if there be circumstances attending the ad- 
roinij>tering which constitute high treason, 
tlien it would not be a felony wirhin this act. 
If- my leaimed friends will Help me out of this 
dilemma h shall be obliged to them. It is an 
implied judgment of parliament, that the act, 
yftmch k makes a felony, is not an overt act of 
treason ; and, if an act of pariiament is pro- 
duced, which makes that a -felony, which would 
otherwise be an overt act «f treason, the in- 
ference is, that these words of the act are to 
receive a limited interpretation. I apply this' 
to the act of the 52nd of the king, and say, 



that it can have reference to those nstanoes 
only which are short of overt aicts of hig^ 
treason. The administering of an oith not 
amounting to an overt act of high treason, 
may be a felony within this act, but not othe^- 
wise, because parliament cannot be presumed 
to have intended to make that felony which 
vras treason ; and no overt act of high treason 
can come vnthin the act as a felony. It can- 
not be at once a treason and a felony. 

My lord Hale, in treating of the question, 
how far subsequent statutes are to be taken as 
interpreting the statute of Edward 3rd, and ex- 
plaining, by the judgments of the legislature, 
what facts are, or are not, overt acts under that 
statute, has this passage: '^The statutes tst 
and 2nd Philip ana Mary c. 3., Ist Ed. 6. c. 12., 
23rd Eliz. c. 2, making sevend offences felony, 
have this wary clause, ' The same not being 
treason by statute 25th Ed. 3rd,' '* and he says, 
''Enacting an offence to be a felony, is a 
great evidence that it was not treason before, 
and a judgment of parliament in point ; for it 
cannot be thought, that it would make that less 
than treason, which was treason by 25th Ed. 
3rd.'' Where lord Coke wishes to shew, that a 
particular act cannot be an overt act of treason, 
he thinks it sufficient to shew, that the legis- 
lature has treated it as a felony. 

I fear I have trespassed too long on your 
lordships' attention. I would apply what I nave 
stated to the present case, and I need not take 
up much more of your time. I would api^y 
this reasoning to the act of parliament in 
hand ; and I maintain, that there are but these 
two mo4es of construction here — Either the 
act was meant to apply only to those oadis 
binding persons to commit treason, the admi- 
nistering or taking of which oa^s does not 
constitute an overt act of treason, — ^I aav, 
either this necessary restriction of the words 
is to be adapted in their construction — or 
else, there is one other alternative, and it must 
be held,- that the statute of the 52nd of the 
king repealed the acts of Edward Srd and queen 
Anne. There is no third way of interpreting 



insult to the understanding of ihe Court, to 
argue which you should adopt — whether yon 
should take that construction, which makes the 
act provide for the emergency forwhidi it was 
passed, and leaves untouched the statute of 
Anne, which was introduced for the safety of 
the subject — ^whether you shsdl adopt' that 
construction which unites, vrith the remedy for 
the |;rievance in the view of the legislatore in 
passmg the act, the leaving the valaable pro- 
visions of former statutes untouched— or whe* 
ther voK IhaU take the ofoosile oonstmcdon, 
which would rep^ the whole of these laws, 
and- would introduce into the law regardillg 
treason, a rule which would be opprostve to 
the subject, and unsafe to the sovereign, by 
reducing to a transportable felony an overt 
act of treason. 

There is a clause in the acts of pariiament, 
of the 37th and 52nd of the king,— the list 



for AiminiUrntg taHamful OatA*. 



3351 

dauae d these acts,— in the foUowing terms : 
''ProTided also, and it is hereby aeclared, 
that any person who shall be tried and ac- 
quitted, or convicted of any offence against 
this act, shall not be liable to be indicted, pro- 
aecnled, or tried again for the same offence or 
6ct, as high treason, or misprision of high 
treason ; and, that nothing in tnis act contain* 
cd shall be construed to extend to prohibit 
any person guilty of any offence against this 
act, and who shall not be tried for the same as 
an offence against this act, from bi'ing tried for 
the same as high treason, or misprision of high 
treason, in s^h manner as if this act had not 
beennuide.'* ^ conceive, that it is from loosely 
interpreting this clause, that there was a no- 
tion entertained by some persons, that there 
is something in it which opposes the construc- 
tion I have put on the other clauses. You 
will observe the very same clause, which is 
in the statute of the 62nd of the king, is in 
die act of the 37th of the king; which last 
mentioned act regards the intentions of the 
parties, as well as the purport and intend- 
ment of the oath, and whicn makes the ad- 
ministering, as well as the taking, of the oath 
oolj a transportable felony. The clause is 
in the one as well as the other act. Let us 
see— It is first said, ^ That any person who 
shall be tried and acquitted, or convicted of 
any offence against this act, shall not be liable 
to be indicted, prosecuted, or tried again for 
the same offence or fetct, as high treason, or 
misprision of high treason ;** — let us see, if 
there be not a case consistent with our in* 
terpretation, which renders this enactment 



• A. D. 1817. 



[326 



Sappose a person to be brought to the J)ar, 
under this very ch^e. which is here stated 
against the prisoner, for adroinisterinjr or taking 
an oath binding to the commission of high trea- 
son, bat by the levying of a war, other than 
thai particnlar sort of war described in the 
statute of the 36th of tlie king. It is laid 
down by all the authorities, that the conspir- 
ing to levy war generally is not an overt act of 
treason. The conspiring the death of the 
king is a treason^ and the actual killing of 
the king cannot be prosecuted as a munier, 
but most be prosecuted as an dvert act, testi- 
fpng an intention to put the king to death. 
Conspiring to levy war is mtf treason — the 
levying of war itself it treason. Then comes 
the statnte of the 36th of the king, which de- 
clares the compassing or imagining the levy- 
ing of war for certain purposes, as, to con- 
stxain the king, or either or bt>th houses of par- 
liament shall be considered an overt act of 
treason. The meaning of this oath, then, if 
It be not mere words which mean noting, 
was to bind a number of persons to leyv war, 
and this to constrain the king, or either or 
both houses of parliament, and this amounts 
to an overt act or treason under the statute of 
the 36th of the king, and cannot be tried as 
aCdofiy. 

'Suppose war levied for the purposes pro--^ 



fessed by those unfortunate persons who- as- 
sumed the name of Luddites ; for the purpose 
of destroying, in the town of Nottingham and 
its vicinity, particular pieces of machinery 
used in the knitting of stockings. To destroy. 
stocking*frames, or any particular pieces of 
machinery, in any particular place or dis- 
trict,, is neither levying war under the statute' 
of Edward 3rd, nor under the 36th of the 
king. Suppose they had levied war — suppose 
they had conspired to levy this sort of war — 
it would not be treason. It could only be 
tried under this act, which makes it feldny. 

Suppose a person accused of felony, under 
this act, for aaministering oaths, to levy such 
sort of war as is treason under the act of 
£dvrard 3rd, but the con^irmg to levy which 
is not treason; and, suppose him to be ac- 
quitted — and suppose war afterwards levied' 
by those with whom he had conspired ; then, 
by the law of England, vrithout the last clause' 
in this act, he might be tried over again for 
treason, thoqgh he had been acquitted on the' 
trial for felony. It was necessary to insert 
this clause, or else this evil would have arisen.' 
The legislature were aware, when they en-' 
acted, that the administering of an oath to 
commit treason should be felony, that it ap-' 
proached near to an act constituting high 
treason; and they therefore declared that^'. 
though it should happen afterwards to be dis- 
covered that it amounted to high treason, if 
this did not appear at the time of a trial for' 
the administering as a felony, the administra- 
tor should be entitled to plead the acquittaL 
That was equitable. 

Suppose a person convicted of the minor 
offence of taking the oath, and sentenced to' 
transportation ; the act declares he shall not 
be again tried for this minor offence, though 
it may have involved him in high treason. It 
is a reasonable object to attribute to the legis- 
lature, the intention of putting by this law the 
subjects of this country in safety, and prevent- 
ing them from being oppressed by the officers 
of the crown. 

The legislature have in their view, that, in 
cases of treason, the counsel of the crown are 
employed, and great pains taken to convici 
the accused — that the minds of the jucy, too, 
are likely to be poisoned with prejudice against 
them. The legislature, therefore, where there 
is a charge of treason, give different rules and 
afford different safeguaras, from those in com- 
mon cases of felony ; and, is it reasonable that 
ibis act of parliament, made for a particular 
purpose, should be held to deprive the sub- 
ject of these safeguards ? — or can it be held 
that great treasonable offences may be com- 
mitted, and only punished by transportation ? 
You see how the judges proceed in such a case 
in England. If a person be indicted for felony 
and, either upon the face of the indictment, 
or otherwise, it appear to the judges that the 
act charged is treason, they would desire the 
indictment to be vrithdrawn. and an indict- 
ment for treason to be preferred. Suppose 



^m 



57 GEORGE III. 



the trial proceeds without anj snch oljectiou, 
andy on the evidence, treason is found to have 
been committed, the judse discharges the 
jury of that indictment. Judgd Foster says, 
1 will not give a chance of acquittal, but *I 
win discharge the jury, and will give the pri- 
soner the benefit of the mode of trial appoint- 
ed for cases of treason. 

What is the result of an^opposite con3trac- 
tion of the act? It is this. All actions are 
popular in £ngland. Persons accused by an^ 
one of the people of conspiring to commit 
treason, must be broiight before a grand jury 
— ^but, according to the prosecutor^s construc- 
tion of this act, tney may be guilty of treason, 
and yet be tried in the ordinary way, and as 
only guilty of a felony. An accomplice may 
indict them under tl^ese acts, and' those, who 
ought to be capitally punished for treason, 
may be transported for seven years as for an 
inferior felony. 

I submit upon all these Tie^ the prose- 
cutor's construction cannot be put upon this 
act. Felonv merges in treason ; and i( in an 
indictment tor felony, the prosecutor make a 
charge of treason, or if the (acts of the case 
turn out and appear on the fividence to be 
treason, you cannot proceed in the trial for 
felony ; neither by the rule of the common law 
of England, nor by the statute of Anne referred 
tp. There are no words in the act 59od of the 
king, which go to repeal the the act of Anne, 
or iibro^te the common law. The interpr^ 
tatjon given by the prosecutor would involve 
the acts in contradiction ' and absurdity, and 
ascribe views which'cannot be ascribed to the 
Isgislgtiire. I submi^ that, according to my 
construction, the act is consistent with die re- 
medy for the eyil — with the intention of the 
legislature — ^with common sense — ^and vrith 
sound construction of law> 

I may have stated some things at too great 
length and some at too little. I was anxious to 
explain my view of this case; and in so doing 
I have, I fear, trespassed too long on your 
lordships time and attention. 

Lord JfuOee Cl&k. — The^ is^ no occasion 
for an^ apology at all. 

Mr, Clerk, — An important objection to the 
Indictment has been noticed by the Court, 
with respecit to which, it has been asked by 
your lordsl^ips, * wfaejLh^r the counsel for the 
prisoner have a wish to argue it? I beg leave 
to offer a few obsifervations upon the point. 

The objection is^ that the allegations in the 
indictment do not describe tjiat offence, which 
is prohibited by the act of parliament, and 
ibat therefore the indictment is irrelevant ^nd 
inept^ The crime described }n fh% sUtute, is 
the administering an oath or engagement, 
furporting or intfindu^ to'bio4 tlie person 
taking the same, to commit any treason, ^. 
But the prisoner is not charged with an pffence 
so described ; the charge gainst him in the 

•FWein^p.^. • ; 



Trial ofjfndmp M^Kinky {jggg^ 

minor proposition of the lndic|9ieilt being, 
that be administered an oath or ehgagem^i,. 
binding (not purporting to bind) the peraon9. 
taking the same to commit treason. Thus 
tbere is a manifest difference between the 
statutory offence and that which Is cjiargurf in 
tlie indictment. 

To administer an oath, ffurporfuig or igf^pvf' 
mg to bind the person t^ing the same, Is i^ 
act highly criminal, and accordingly, it I9 hjf 
the statute punishable with death. 'Sdi tne 
allegation against the panel charges him with 
an act, which is not punishable by the statute, 
in which no such offence is mentioned, tn 
all probability no statute will ever be' made, 
declaring that which is charged against the 
prisoner in this indictment to be punishable 
with death, or with any other punishment op 
penalty whatever. But, at all events, the pro- 
secutor has totally failed in this indictasent to' 
describe the statutory offence. Indeed, the 
prosecutor's description of the crime sup*' 
posed to have been committed defeats it^if, 
by containing a plain and direct contradic^on 
in its terms. He alle^ that the prisoner 
administered an oath, Unditig the persons tak* 
ing tihe same to commit treason. Tios allq;^- 
tion pre-supposes that a person, takins an oath 
to commit high treason,, is txituify hotmd \fj 
such ^ oath, which is an evident absurdity. 
An oath may be bindinir where its obligatiofi 
is to do a thing that is legal or mnooetU ; bat 
no obligation or binding enga|en|ent can ever 
result from ah oath to commit &gh treason,^ 
or an oath to commit any other crime. I^oVidy 
can be hotrnd, by the most tremendous oath, 
to violate every previous obligation and en- 
gagement he has come ni^der. 4s the pro* 
secutor describes the offence, thereibrey no 
such offence could exist; and the statement «€ 
it is a contradiction in terms, in so fiur as it 
supposes the par^ taking the oath to be boond 
by Sk aU^tance^ without which he could not 
commit high treason; and supposes, at tlio 
same time, that he was 90^ bmmd by bis alle- 
giance, but actually bonnd by the c^4h whidi 
he took. Such an absurdity as thi^ can never be 
sustained in any criminal chaj^e, or ^^eed in 
any legal proceeding; and mud|i less jcan it 
be sustained i|i a charge vipon which' tbp 
accused party is to be tri^ for his life.' ' 

But, thou^ the absurdity were less evident 
than it is, the objection to the terms of the charge 
is insurmountable, upon the plain and simple 
fact that the averment of the prosecutor does not 
charge the prisoner with the statutory offi^oe. It 
would indeed have been very extraorduaa'nr, if 
the legislature, in describing an cifi^ce of so 
high a nature as to be pu^Ubable with death, 
had fallen into the absuidiiy which' bS4 crept 
into tliis indictment. The statute does ppt 
assert, or acknowledge the pb^ibiUty of 
admioisterin;^ or taking m na^y S^ .if;nx^f^ 
enough to ^91^ the person taking it Iq iDfnMIHt 
Ipeh treason, or to commit njnrd^, m ai)^ 
other crime. On the contrary, it is cle^^ j||^- 



90^] 



far, Aiwa$i/d*n»g wiZBtg^ Oalikt, 



A. Ik \X\1. 



capo 



ti9 A ofLth is, to all intents and porppses wbai- 
soever, d^tftitote of lundiog force. The 
crioiiDalitj contenplatied i;D the statute, ia that 
cl Tiolatiogy bj the tota} perrersion and mU- 
ujglipatioD of a solemnity, the obli|^atiop8 
i^db hjnd n^^ to each other in apaety— a 
Tiolation of the most dangerous Datorejjperpe- 
t{ff^ ]bx ^ i90*t widred mean^ To ad- 
Btpifter an |iMUh« fwfpor^w <''' io^en^uv to bind , 
tpe person )^ing the saine to commit any 
treason or murder, is a wicked and dangerous 
^olsytipn of th^ most sacred engagements, 
though ll cannot alter them. This isthe statutory 
crimp ; \mt as no such crime is charged in the 
indicti]»ent, t)ie oljection suggested on the 
bejich Is petfiKtlj well foundedT 

JU^ J}riama^.'-\\, is now my doty to snb- 
mlt to ^oor lordships, some remarks upon the 
Other We of the question ; and, after the long 
discussion which has already taken place, upon 
almost the aame indictment as that now under 

Sdr Tiew. and after the ample time which you 
Te bad for private consideration ot the sub* 
ject now before you, I do not feel myself palfed 
qpon to enter so much at large into the case, 
asotberwise I might have done. Indeed, there 
ffere aome argqments used upon the other aide 
cif die bar of which ][ fhall omit aU notice as 
not appeving to me to hare any intimate con- 
nection with the points at issue^ or to be likely 
to inflqence the ultxinate decision. But there 
ase others which are of gnat importance ; and 
to these X shall at once proceed. 

The first and gnsat point that appea^a to me 
fiv yjinr loidiibip's coii|ideration« a*^ the con-, 
strif ct^dn ai^d n^eaniqg' pf this oath ; for, \inl^ 

the sf^\>^ (he mewing .iq!ch|<^l> ^® W^ VP<^ 
it, it 18 Vi|)^^^jfes;isary |o Miy a ragle wm npp^ 
ttiy pth^r part of this indictinent. By what 
rple pf constrpctiop then, are wja to find out the 
veaning of ^e oath? Are we to tiike the 
literal inieaniiig of the words, or to put a more 
Ipfero/ ooofiroction upon them? I ani no^ 
itfiraid of any of the rniym of construction that 
may be adopted on the other aide of the bar; 
bnt I snppqse it is nnnecessaiy for me to say 
any ibing as to ^l^icnX meaning of the wocda, 
as this ml obyioosly bear but one interpreta- 
tion; and this is not the mode my learned 
friends have had recourse to. tiet us then take 
the plain meaning and sense of the oath, and 
pot opon it thai meaning which, in the common 
intercourse of )ue, is put upon yrordis ; and,. I 
hare no hesitation in saying, that tins is the 
mle of cqnatruction jby which, in my 6piniqn> 
the oath should be tried. Itie counsel on the 
other side have employed great ingenuity in 
a^^tUnppting to^constme Uie oath, and have tslen 
m eovM which no man of common sense, in 
the ordtD^ affufs of life, would have hit upon. 
1bey.ha.Te endeavtHnpad to construe out of the 
qath, a reaerf ation of illegality, that is, of illegal 
anea^res, ' for the prpfecution ,of the ol^epts in 
view lnr,t$oiie hound by the bath. . They assert, 
tha^ w^en this oafh vaiidceD; jOu^JDM^fUdjiD 

w« w^^wiloo* to Wmm^xImMfim^ 



in Tiew were meantto-he iiecpsipMfbied by all 
legal methods, but not by any illegal methods, 
and they say,that ypnrlorqsbips are called upon 
to give this construction an4 meaning to the 
oath. Upon the other hand, \ snbmit that there . 
is no reservation pf illegality within the com* 
pass of this oath. The oath is general, and has 
no lesiervations ; it extpnd^ to, and indudes all 
methods neces^ry for the accomplishment of 
the ends in view, whether by moral or physic^il 
strength. 

In constniing the meaning of the oath, in a 
question of relevancy, you will take into view, 
, not the mere meaning of the words of the oath 
itself, bnt al^ all the circumstances vnder 
which it is libelled tf^at the oath >ras adfiuais-. 
ten^ and tal^n. ' It is libelled, that the o^th 
w^ Mnfcke^ly^ m)lu49l^y» ^<^ traitorously ad- 
ministered; and iniported an ohlig^ion tp. 
cbn^mit treason. ' If the oaM^ nroy mean ' wjuit 
the pirosecntor aays it does, as he li^eU thfit 
the act Tfas done wickedly, maliciously, and 
t^aitorotisly, I have to submit ^at the charge 
is relevant, and ihat the prosecutor is not 
bound, in this sti^ of the process, to shew thaf 
thb is of necessity the meaning of the qath. 
He is entitled to stimd upon this frpond, that, 
if the oath may mean what he says it does ; and 
my bear the meaning with whioi, in Ubie indict- 
ment, he says it wai administered ancl taken, 
you are bound, libelled as it is, tp give it ^e 
construction which the prosecutor says it bears, 
to the effect of sendin(|; the charge to a jnry. 
It will ultimately remun for the jury to decLde 
as to the guilty purpo^. 

But this u not the naked case before your 
lordships. There arp other circumatancea . 
which are not to be lost sight of in construing 
this oath. Your lordships, in looking at the 
indictment, will see that the oath was ad- 
ministered at wrti mHtimp; a material cir- 
cumstance in considering the views and inten- 
tions with which it was aaminiftered. You will 
remember, that the society or conspiracy which 
was in. view of theperso'nawho adojunisteredand 
toi»k this oatli, was one of a very extensive nature, 
including a brotherhood of Britons of vrtiy 
description ; and that the oath was actually ad* 
ministered to several hundred persons. These 
are remarkable features of the case, that the 
oath was so extensivel^r administered, and that 
the object of the association was so unlimited. 
It is iho set forth in the indictment, that this 
oath has been administered to persons who, 
conscious of their guilt in the premises, have 
absconded and fled from justice ; and this is a 
circumstance relevant to pass to an as|nze, and, 
likeall the othef circumstances libelled, must be 
taken for sranted as true fay your lordships in 
Judging of the relevancy. 

The taking of any oatn pf secrecy is, of itself 
a presumption o( guilt; and a secret purpose 
of any kind is a presumption against the paneL 
1 know, .that other oaths i^ere alluded to py the 
opposite counsel ; and, as an instance of inno- 
cence t^tith regard io the objects of them, those 
53KJgi;ej9p^|ipitf 9^. , HiQh I Whmit, that- 



3311 S7 GEORGE III. 

I am correct in stating the general role, and 
that these form an exception. Freemasonry 
is an old |>iece of folly» at least ; and» it is not 
only notorious that Freemasons have nothing 
to conoealy but it has been ascertained by ex- 
perience, that mischievous consequences have 
not, in this country, foUovred from the oaths 
of secrecy of that institution. But, though 
there may be secret oaths of an innocent de- 
scription, the presumption is against them, and 
particularly against such an oath of secrecy as 
the present, under the awful sanction of death ; 
for it seems to hare been a standing rule of the 
conspiracy to murder all informers. 

The attempts, however, to shew that the oath 
might be quite innocent, appeared at length to 
be abandoned, and a distinct admission was 
made, that the administerine or taking of this 
oath is a ^misdemeanor;** oy which, I sup- 
pose, was meant (for the word has no technical 
meaning here) something criminal at common 
law, though not in the highest degree. Now, 
if it be criminal, in what can the criminality 
consist but in the treasonable purpose and pre- 
paration ? There is plainly no other wicked or 
unlawful purpose in view. 

The oaths of allegiance, of supremacy, and 
others, were alluded to by Mr. Cranstoun, who 
ingeniously argued, that, according to our 
principle of construction, the administration of 
these oaths might be held to imply an obliga- 
tion to commit treason. But the question here 
is not what extraordinary constructions the in- 
genuity of learned men may put upon what 
may be placed before them. The question is, 
What would a man of common sense think 
upon the subject, did it come before him in 
any ordinary transaction of life f Such fanciful 
illustrations are little to the purpose. But I 
happen to have here a specimen of another 
oath, the striking similarity of which to the 
present cannot fail to Attract 'particular atten- 
tion. It was the foundation of all that con- 
spiracy in Ireland, which afterwards ended in 
open rebellion against the government; and 
your lordships wUl see how the terms of the 
oath cited in the indictment tally with the 
terms of the oath, or test, as it was called, 
which I am now about to read : ** In the awfiil 
presence of God, I, A. B. do voluntarily de- 
clare, that I will persevere in endeavourmg to 
form a brotherhood of affection among Irishmen 
of every religious persuasion ; and that I will 
persevere in my endeavours to obtain an equal, 
mil, and adequate representation of all the 
people of Ireland. I do further declare, that 
neither hopes, fears, rewards, or punishments, 
shall ever induce me, directly or indirectly, to 
inform on or give -evidence against, any mem- 
ber or members of this or similar societies, for 
any act or expression of theirs done or made, 
collectively or individually, in or out of this 
society in pursuance of the spirit of this ob- 
ligation."^ I hear one of the opposite counsel 



Trial ofAnirm^ M'KinUy 



r333 



* See the trial of Finney for high treason, 
5 How. Mod. St. Tr. 1075, in which the aboTe 
oath, or test, was given in evidence. 



remark, that this oath contains no oblifption to 
commit treason ; but, I do not know with what 
view the remark is made, unless it be to mark 
the contrast between the oath which introduced 
the Irish rebellion and all its terrible conse* 
quences,with that more atrodons oath now 
under consideration. 

Hie terms of the oath in the indictment are 
now so well known to your lordships, that I 
need not point out the particular differencea 
between the two oaths. 

What the prosecutor says is, that this oath 
means to bind the person taking the same to 
commit treason ; and it is objected, that be 
has not told your lordships, on the face of 
the indictment, what species of treason the 
taker of the joath is bound.to commit. Heie I 
must request your lordships' attention to what 
appeared to me to be apalpable fallacy in the 
opposite argument. The case was aU along 
pleaded by the learned gentleman, as if the 
prosecutor had been chargine the panel with 
the crime of treason itself. Now there is no 
charge of treason ; but a charge of administer- 
ing an unlawful oath — an oath binding to 
commit treason, which object of the oath must 
indeed be libelled, otherwise thereis norele-' 
vant charge. But the indictment is not to be 
construed as if it had been libelled that treason 
was actually committed ; nor is such a specifi- 
cation of treason to be required as if it had 
been charged as the offence of which the panel 
is accused, and for which he is brought to trial, 
and not merely as existing in intention. The 
essence of the relevancy is what the panel dU^ 
not what Ae had m rHern ; of which, no more 
can be told than what the oath itself reveals. 
Any thing else is an inference in law, which 
can add nothing to the relevancy. Now, 
although the prosecutor has not drawn an in- 
ference in law from the facts, he has told your 
lordships, not only the acts done, but all that 
he knows of the acts which the parties bound 
themselves to commit. He tells what the facts 
are, which, it is the infierence in law, if done, 
would have been treason. But in judging of 
the relevancy, you are not merely to judge 
whether the prosecutor is riffht in his^inference 
from the facts ; your lordships will go to the 
oath, and draw the conclusion in your own 
minds. At the same time, I have no hesita- 
tion in saying here, that the kind of treason 
which the parties bound themselves to commit, 
is plainly that of levying war against the king. 
I shall presently speak more particularly to 
the treason, and will show, that the treason 
which the oath bound ' to commit is that now 
alluded to. 

Before leaving the oath, I may make some 
further remarks upon what, with such ingenuity 
and force, was stated by Mr. Cranstoun. In- 
stead of taking the whole . oath into view, he 
divided it into four parts, and drew separate 
conclusions from all those parts-^a rule of 
construction quite out of the question. It 
mi^t.be as well pleaded to a jury, in,a case 
of circamstantial evidence, that they are to 



aaal 



MHUnffid Oathi, 



A. D. 1817. 



[334 



of each drcunistance by itsdf. In con* 
ftniug theoath. Air, Cranstonn set. oot with 
statingf that a brotherhood of afiection is an 
innoccDty suod even a laudable object, and 
somewhat qpaintly added : ^ That it is a plei^ 
sant thing for brethren to dwell together in 
unity.'* This may be veiy ingenious, but I 
say, with deference, that it is tnfling with the 
case, to make such remarks to your lordships. 
The oath is not to be torn piece-meal. The 
meaning is to be drawn from a fair considera- 
tion of the whole of it. I might as well take 
each wor4 or letter of the. oath indiTidually, 
ai&d say, that erenr word or letter taken by it^ 
self is not criminal, as thus break it into parts, 
and argue upon each without reference to. the 
rest. Not that I think his conclusions, even 
93 he took the clauses, were justified by the 
clauses themselves. I cannot admit any such 
thing — but I protest against this way of con- 
struing the 08th,^or construing any thing. 
. It was said, founding upon the pther aigu* 
ment, the reservation of illegality, that we may 
petition for annual pariiaments and univers^ 
suffrage— that these objects may be accomplish- 
ed by lawful means — and, from this, the con- 
clusion was drawn, that there was nothing 
illegal done or intended. But the question is, 
whether the end can justify any means that 
mav be employed in obtaining it. It b the 
viount mlamt which we charge as criminal, and 
these are left totally out of view, in the argu- 
ment on the other side o( the bar. 

Then the word ^ strength '' is taken up, and 
a eoostmction is £^ven to it to show, that the 
term in the oath was applicable to an indivi- 
doal and not to a number of * individuals. 
Tbere the learned gentleman lost sight of the 
beginning of the oath, where the brotherhood 
is mentioned. From this, however, and the 
whole context of the oath, I apprehend it to 
1>6 perfectly clear, that in considering the 
meaning of the word ** strength,'* we are not 
to apply it to an individual, but to as many as 
could be brought to join in this society or 
conspiracy. 

On the whole, I must confess that I have 
not been able to discover the distinction be* 
tween force and strensth in this oath. It 
would have conveyed the same conclusion to 
my mind, if the one word had been employed 
asw«ll as the other. Physical strength has 
just as plain and obvious a meaning where it 
stands, as any words can have. It is not an 
nnoommoii expression among the lower orders 
of politicians ; and, I am afraid, the idea is 
perfectly familiar to them. Now, notorietv is 
as good a rule of construction as could be bad 
recourse to. It was said, that grammatical nice- 
ties areout of place here, and that strict rules of 
criticism would be misapplied in interpreting 
the language of such a man as the panel at the 
bar. I pmectly approve of the remark. I 
wish the oath to be taken in the meaning 
which men in the lower ranks of life would 
apply to it. Strength, i^ it here stands, can 
mean nothing else than the means, the power. 



or fDioe to be employed against the obstacle or 
oontraiy force that might stand in the waj of 
the accomplishment of the objects in view, 
whatever they inight be; and the united 
strength of numbers is plainly meant. 

Supposing it were possible to put such a con- 
struction upon the words as that contended for 
on the other side of the bar^ let us see the effect 
of it — ^let us attempt to insert such unambigu- 
ous words as would unquestionably give the 
oath what they say is the meaning of it : and 
by a fairer test it cannot be tried. — ^Tbus : 
*' But I bind myself to do nothing contrary to 
law, or to attempt anything by force against 
any subsisting right ;" I ask whether if these 
words were stuck into the middle of this oath, 
they would not stultify it, and make it quite 
contradictory, and palpably absurd. 

A great deal was said about the presump- 
tion in favour of the innocence of the panel. 
This is a common topic of declamation ; but, 
I must confess, I never could understand the 
presumption of the innocence of a panel. I 
am aware that the omu probatuU lies upon the 
prosecutor, and that if he fail to make out his 
case, the panel must be assoilzied ; but I see 
no room for a presumption of any sort, but 
^hat arises from the want of contrary proof; 
and I know of no such doctrine in any work 
upon the criminal law of Scotland. The fact 
is, that in a question of relevancy, there is 
rather a presumption of guilt; or, to speak 
more correctlv, an assumption of the truth of 
the libeL Every thing is supposed to be 
wickedly and maliciously done, as libelled f 
and the question is, supposing all this proved 
as charged, does it infer a punishment in law ? 
as, otherwise, it is impossiole to allow a proof 
of what is alleged. — 1 misht argue, that the 
presumption is against the man who takes 
such an oath as that libelled, which even my 
learned friends admit to be contrary to law, 
and a punishable offence, though not of the 
description set forth in this indictment ; and 
that, from the very circumstance of the panel 
having taken such an oath, the onus lies no 
longer with the prosecutor to prove his guilty 
purpose, but with the nanel to reconcile his 
conduct to innocence if^ he can. But, upon 
any view of the subject, I should like to know 
what presumption, or what rule or principle 
calls for such a construction as that put upon 
the oath. Is it the protection of innocence, or 
that *' iffue of public duty " that was spoken of 
in tlie last debate, or any laudable principle 
under the sun, that makes it necessary to do 
such violence to language and common sense, 
to suppress the truth, or to pervert the plain 
'sense and fair meaning of any thing ? 

I shall now beg l^ve to request your lord* 
ships' attentiop to what the persons adminis* 
tenqg and taking thb oath bound themselves 
to do ; and, I have to Submit, that it is plain, 
from all the authorities upon treason, that the 
accomplishment of universal suffrage, when 
carried into effect by the force of numbers, is 
treason, by levying war against the king. It 



iMf^] 57 o£X)fiefe ki. 



TfM tfAfOfti^ M'Khtty 



Isait 



fSdd, tiflhch mA(t dtit srdbitetfor a siidgle day 
ilHtfe^ iQcb a s^^stetii df thingpi^ io the present 
dredinfftanc^ df this eitensiye eibpire. The 
accompHshtil^fat of aiiy public ptiiport h^ 
Violence i« treasbh; btit to' a<kM>tDmii8h tini- 
Tennll sdftrag« bjr vloleiicey is nndoabtedly 
t d6^til;tioii of thfe Cbnstitutidii itsdf. I 
db' not b^tietd that ihkte is H differndbe 
dl^on^ injr of the ^r^t anthoritiet upon 
tfafs pblMt. Id lookrag fl:it authorid^ I 
natttfdly had reconrsie to soine of the late toals 
lor treitfioh in Eofrland, to see how the judges 
th6re laid doii«n thb latjlr in such cates. Loitt 
LoKghbohHigh; in the case of Lord Oeorge 
Gorddtt, said, ^< I am peculiarly hiippy that I 
ath' euatpl«d totftate the law on the shbiect, 
not ftom any rtetisonings 6r deductions of my 
oWn, whidh are liable to error^ and in which a 
change or inaccuracy of elpression might be 

StoductiTe of mudi mischief; but from the 
ht authotitr, ftom which my mouth only will 
be employed in pronouncing the law, I shall 
State it to ydu in the word^ of that great able, 
and learhed jhdge, Mr. Justice Foster, that 
true friend to th^ libertiesjof his country.'^ I 

Sttote this, to show to what authorities the 
English judges hare tecouhie,when consideriuff 
questions of this kind. At the end of this trial, 
ue same law wai liud down by lord Mansfield; 
but I shdl fitst reid the passage' firom Foster 
ilimself. Pait of it was alreddy read by the 
kaf^ed gentleman opposite, bift, as he stopped 
Idabtly where I vrished him to go on, I snail 
bt^ dnd^r the Necessity of riding the whole. I 
f^u At ydur lordships' att^fttion to the miantier 
in' which F6!itet differii from th^ opinion 6f 
Hale, on the very point on Whidi Hale's au- 
thority luts been so much rested on in the pre- 
seht case, and for which he hlu been caued 
the '< great father of the law of treasons." 
Ilale*!) opinion does not appear to me to be 
qiiofed as so completely conclusive on the 
question by the great authorities in England ' 
as is done here. They have recourse to more 
recent expositions of the law. 

•<<Lord Chief-Justice Hale,*' says Foster,t 
''speakiuff of such unlawful assemblies as may 
amount to a levying of war within the 25 Eliza- 
beth, c. 3, taketh a difference between those 
insurrections which have carried the appear- 
ance of an army, formed under leaders, and 
Srovided with military weapons, and vri th 
rums, colours, Sdc. and those other disorderly 
tumultuous assemblies, which have been drawn 
together, and conducted to purpcMies mani- 
festly unlawful, but without any of the ordi- 
nary shew and apparatus of war before men- 
tioned. 

*' I do not think any great stress can' be 
laid on that distinction. It^s true that, in 
case of levyiogqf war, the indictments gener^ly 
charge, that the defendants wei^ armed and 
arrayed in a warlike manner; and, where the 
case would admit of it the other circumstances 



• «i Hdw. St. Tr. 490, t Cr. L; 208: 



cif s#6rds; guiis^drums, colout^ &t. h&Ve bee<i 
added. Buty 1 thkk, M mmk of the cai^ 
hk^^ ubver mrned singly on any of tfaidie cif- 
cutnstances. 

'*Iti the ctes 6t Damatfeeand PUrchlise;, 
Which M the bst printed caSes that' have 
come hi jUdgmchit on the poiht of cbnstrocUve 
levyidg war, thdte was nothing given in evi« 
denc^ of the usuid pageantry of war; — ^no 
mititaiy weapons — nb burners br drums — ^nor 
any regular consultation previomr to the rising. 
And yet the wihit of th'ose circtimstanc^ 
weighed nothing with the Court; thbugh the 
priboner*8 codnsd ItisUfted mucH oU that malf- 
ter. Tttif number of the insurgents supplied 
dib Want of ddlitaty Weapons; and they were 
provided With axies, crows, and other tools oT 
the like natdric, proper for the mischief thej 
intended to eifect : 



M 



Mt e^v^^r aev ^^Hv ^^P^vwwvv Vwv 



''Sect. 1.— The tra^ criterion, therefore, in 
all these cases, is 9110 ardiitQ did the parties 
assemble f For, if the a^lembly be upon ad- 
count of some private quarrel, or to take 
revenge of particular persons, the statute of 
treasons hatti already determined that point in 
favour of the Subject.'' 

**Sect. 3. (p. 21d.)— But every ihsurrec- 
tibn which, in judgment of law, is ^intended 
agaihst the person of the king, be it to de- 
throne or imprisod htm — or to oblige him to 
alter his measures ^t government — or to re^ 
movfc evil councillors from about liim — ^Uiet^ 
risings all amount to levying war within die 
Statute; wK^er attended with the pomp and 
circumstanbesofopenwkrofno. And every con* 
spiracy to levy vrar for these purpose!l, though 
not treason within the clause of levying war, 
is yet an otert aift within the other clause oT 
compassing the king's deiith. For those pur- 
poses cannot be effected by numbers and open 
force without manifest ddnger to his person. 

^Sect 4. — Insurrections, in order to throw 
down all enclosures, to alter the established 
law, or change religion, to enhance the price 
of all labour, or to open all prisons ; all risings 
in order to effect these innovations, of a piiS- 
lic and general concern, by an armed force, 
are, in construction of law, high treasoiu