the said John Morton, James Anderson, and Malcolm Craig respectively, and will for that purpose be lodged with the clerk of the high court of Justiciary before which they are to be tried that they may have an opportunity of seeing the same: at least, time and place above mentioned, the foresaid seditious speeches were uttered, and the said wicked attempts made to seduce the soldiers from their duty and allegiance, and the said persons above complained upon are all and each or one or other of them guilty actors or art and part of the said crime; all which or part thereof being found proven by the verdict of an assize before our lord justice general, lord justice clerk, and lords commissioners of justiciary, in a court of justiciary to be holden by them within the criminal court house of Edinburgh upon the 26th day of December instant, the said John Morton, James Anderson, and Malcolm Craig, ought to be punished with the pains of law to deter others from committing the like crimes in all time coming. The libel being read over to the panels in open court, and they being severally interrogated thereon, they answered they were not guilty. Pro'rs for the Prosecutor.-Robert Dundas, esq., of Arniston, his majesty's advocate [afterwards lord chief baron of the exchequer.] Mr. Robert Blair, his majesty's solicitorgeneral [afterwards lord president of the court of session.]; and Mr. John Burnett, advocate. Pro'rs for the Panels.—Mr. Alexander Mr. David Williamson, advocate; and : of the clergy were too small that the panels had no intention to offer any thing hostile to the constitution; they have no connexion with any of the clubs or associations, and their going to the Castle was merely accidental, as will appear upon investigation; and if the libel should be found relevant, craved a proof at large in exculpation and alleviation. He also mentioned the inexpediency of bringing to trial a crime of this nature, of which there had been no recent example upon the records of court; and that it might be of dangerous consequence, to introduce as a precedent the trial of a crime of such difficult proof, and of so ambiguous a nature. Mr. Burnett answered, that in this case perhaps, more than in any other, there was the greatest room for the question of intention. That no doubt words of the most seditious tendency might be uttered without any view to stir up sedition, but from mere rashness and folly. The intention however must be judged of from the whole circumstances attending the case, from the occasion and time whom such speeches are uttered: that the when, the place where, and the persons to whole circumstances appearing from the face of the libel joined to the obvious meaning of the words themselves, exclude every presumption of any thing else, than a wicked and seditious design; and therefore the statement in the minor proposition is fully tantamount to the crime charged in the major. The panels are printers conversant in the meaning of words; they must know that in an established government, every act to disturb that government is highly criminal at contended, remain no doubt of the relevancy common law. There could, therefore, he of the charge now brought: and he did not oppose a proof at large in exculpation or alleviation. The Lord Advocate after complimenting Mr. Fergusson for the panels, represented, the counsel for the panels, for the very that the crime here charged of uttering sedi- able manner in which he had expressed tious speeches was one which had not oc- himself, said, that he considered it as in curred in this country as a subject of trial in a peculiar manner his duty, to advert to the memory of any man living. That in what had been stated with regard to the informer times it had often been prosecuted, expediency of bringing this offence to trial. but that those were times when the freedom His lordship said that the conduct of those in of the subject was not so secure as now. the situation which he held, with respect to That the words here used were ambiguous in the bringing to trial offences of this nature, their import, were mere verba jactantia uttered must be regulated in a great measure by the in convivial discourse without any wicked or existing circumstances of the country. That seditious design, and that the statement in what at one time would be considered as an the minor proposition did not amount to the act of mere folly and rashness, and as having crime described in the major proposition; no seditious tendency, is, at another, and at a that with regard to the part of the libel different conjuncture, an act of a more miswhich charges an attempt to seduce the mili-chievous and serious nature. That at the tary from their duty and allegiance, he contended that it appears that the panels had only expressed what many people may think, also, that the soldiers had too little pay, but that they did not thereby mean to seduce or corrupt them. That in this there was nothing inore criminal than in saying that the stipends time when the words and speeches were utterred, that are stated in this charge, the country was in a very alarming situation indeed: principles had been openly and avowedly published, that were hostile not only to that happy constitution under which we live, but subversive of all order, and of every esta blished government. That persons who on such an occasion, and at such a conjuncture, expressed themselves in the manner in which it is stated these panels did, could have been actuated by nothing else than a most wicked and seditious purpose, with a view to stir up that spirit of popular insurrection, and to produce those scenes of riot and anarchy, which had been so dismally experienced by the inhabitants of a neighbouring country. That when attempts were thus made to subvert the constitution, and so violent an outrage committed on the law of the country, he thought it the duty of every good and peaceable subject to endeavour to counteract them; and more particularly the duty of the public prosecutor to bring those persons to trial, who had been in any shape accessory to the commission of such outrages. That as he all along considered the conduct of the panels in that light, and that they had been actuated with a seditious intention at the time, he conceived, that he would have failed egregiously in his duty to the public, if he had not brought them to trial. With respect to the relevancy of the indictment, his lordship did not conceive, that there could be the least room to doubt, that from the whole circumstances as appearing upon the face of the indictment, joined to the obvious purport of the words said to have been uttered, a crime of a very aggravated nature had been committed, and which well deserved the most serious attention both of the Court and jury. Their lordships then severally delivered their opinions. Lord Henderland. My lords; I am extremely sorry to see three young men, industriously brought up to a useful profession, placed at your lordships bar as panels. I am bound, in this stage of the business, to presume they are innocent, and humanity induces me to wish they may be found so; but that is not the question before us; our present province is, by examining the indictment to determine how far a crime is properly charged in what is called the major proposition, and, if so, whether the facts stated in the minor, amount to that crime, and are relevant to infer punishment? The indictment charges, in the major proposition, that the uttering seditious speeches, tending to create a spirit of disaffection and disloyalty, especially among soldiers, and with a view to withdraw them from their duty, is a crime. Who can doubt it? The pannel's counsel admit it is so. The facts stated in the minor proposition are in substance, That the pannels having sent for certain soldiers, garrisoned in the Castle of Edinburgh, to their company, did propose to drink, drink, or cause to be drunk, in their presence, as a toast, "George the third and last, and damnation to all crowned heads." What was this, but ouvertly expressing a most wicked and flagitious wish that our gracious sovereign, under whose mild and auspici ous sway, this nation has arrived at a pitch of prosperity unenjoyed and envied by most of the other parts of Europe, should be damned?—a wish, that in his person a period might be put to that happy constitution, by which our lives, our liberties, and our properties, have been protected and secured! It was admitted to be most flagitious, but it seemed to be denied that of itself it was a crime tryable in this court. In my opinion, it is of itself a crime well meriting the cognizance of this high court, and to be tried by the most respectable jury of this realm. Openly to avow a desire to overturn the constitution; an impious wish that our beneficent sovereign, distinguished by private and public virtues; his sacred majesty, the father of his people, would be damned!-What can be more criminal? But this is not the crime meant to be here charged, for these words, in the indictment, are coupled as follows; and they, the said persons, did further insist that said soldiers should join them in said toast. Was not this very act an attempt to withdraw the soldiers from their duty and allegiance, and thereby to break their military oaths and engagements? The indictment farther proceeds-That the panels did seditiously and feloniously endeavour to raise discontents in the minds of the said soldiers, and to seduce them from their duty, by pretending their pay was too small, and holding out to them the prospect of higher pay, if they would join persons of a description therein named. What means of seduction could be employed apparently more effectual? It was said that the persons or clubs mentioned in the indictment, held and avowed principles favourable to government and to the constitution. I can know nothing of these clubs in this place; I like not their names. The Friends of the People, and a Club for Equality and Freedom! What occasion for such associations, with such names? Are not the people protected in the enjoyment of their constitutional rights, and in reaping the fruits of their industry? A club for equality and freedom! Freedom is a name we all revere, and we enjoy it; but if, by equality, be meant an equal division of property, it would be a downright robbery to introduce it! To say that all men have equal rights when born, is a proposition from whence no consequence can be drawn. Or to maintain that all men are equal, is neither founded in truth nor nature-scarce two children are born precisely alike. Among men we differ in the simplest powers of the body. Few men possess the ability of walking in such perfection as the celebrated pedestrian. Has every man abilities, natural or acquired, to qualify him for a minister of state? Or does the extensive knowledge of trade and commerce, which so eminently distinguish a Hope of Amsterdam, and even some of our fellow citizens here, who have, much to their own honour and country's advantage, ac quired large fortunes in the same way, belong to all men? To reduce them in point of wealth and riches to a common level would be an unprincipled and nefarious robbery. Every man has a right to acquire wealth and riches, but it must be by the same or equally lawful means. But suppose the object of such societies to be no more than to announce the above unconsequential proposition; or that their principles are favourable to order and government; that they mean to support the constitution.-Be it so. What then? In every nation, among every people, which can deserve the name of a state, there must be different departments, different powers of state, of public civil dominion, which are distinct, by whomsoever exercised, out of which different relations and duties arise. Internal controversies produce the judicial power; wrongs from without, the fecial; the necessity of general rules of conduct, the legislative; of a public revenue and property, the fiscal; and the public force necessary to carry into effect the determinations of all the others, with the regulations belonging to it, constitutes that branch of public civil dominion, which is called military magistracy; it matters not of how many parts it consists, or in what form it be employed, whether it be called the king's host, as formerly with us, consisting of military vassals, a posse comitatus, a militia, or a standing army raised under the authority of parliament. All these different departments or powers, exercised by one or many, have their separate duties and dependances: and by that common law which arises from the constitution of government itself, a transgression or an attempt to bring about a transgression of these must be punishable. It may depend, deed, upon circumstances, before what court. The military, when raised, are under the command of the king, and of the officers set over them by his majesty. To withdraw, or to attempt to withdraw soldiers from such constitutional dependance and discipline, and place them under any other influence or authority whatever, must be a crime, and of course punishable; and if made by one not under military command, may be tried and punished in this high court. It was said, in the way of defence, without admitting the truth of the charge, That the attempt must have been unpremeditated the whole affair accidental—that the panels must have been drunk-or it must have proceeded from levity. To constitute murder, it is not necessary that the slaughter should have been long premeditated. If the act be committed, intention and a design must be presumed, unless such circumstances of accident could be established as rendered the slayer an involuntary agent; such, for instance, as the head of an axe flying off, and killing a man. No such circumstance could occur here.-Drunkenness could be no alle viation- were it, the greatest criminals would escape.* How many instances have we of men getting drunk to embolden them to commit crimes? Levity can be no excuse. The proverbial wisdom of this country teaches, it is dangerous to play with edged tools." Most crimes discover want of considerationall want of just reasoning and sound judg ment. I shall be happy if the jury can find any ground consistent with their oath, and with their duty to their country, upon which the panels may be acquitted. In the mean time it is mine to say, that the above defences hinted at by the panels' counsel, ought not in law to avail them, and that your lordships will pronounce an interlocutor finding th indiciment relevant. Lord Eskgrove considered the crimes. charged in the indictment as of a very dangerous nature and tendency; and he entirely concurred in the opinion which had been given. Lord Swinton. My lords; the question now before the court is not, Whether the prisoners are guilty of the crimes laid to their charge? for that is the province of the jury. Neither is it the heinousness of the crime, charged in the general proposition of the indictment; for that is admitted. But the present question is singly, Whether the particular articles in the charge amount to the crime laid in the general proposition; and whether relevant to infer the pains of law; so that issue may be joined upon them, and sent to a jury, upon the plea of not guilty? This question has, however, been treated so properly and so fully by such of your lordships as have already delivered your opinions, that I can only tread in their footsteps, and shall therefore use few words. The essence and criminality of the charge depend entirely upon the intent of the words spoken by the prisoners, and their behaviour accompanying these words. So the question is, whether the articles charged infer a felonious and criminal intent. Though the prisoners have pled not guilty in general, yet their counsel have laid in for a special defence, by explaining, that though some of the words had really been spoken, yet, loose expressions in the warmth of conviviality ought not to be laid hold of, as importing any thing serious or criminal. Whether that construction can be put upon them, or whether liquor and conviviality brought out the sentiments that were uppermost (as in vino veritas) would depend on the proof which was not hujus loci; we were now only to consider whether the charge is relevantly laid. This would best appear by considering the tenor of the indictment. First, It is charged, that they sent for some of the soldiers to join their company, to drink with them. * See Vol. XXII. of this Collection, p. 520, note, and the authorities there referred to, This is a clear charge of intent. What had produce effects similar to what had taken they to do with the soldiers, if they were not place in a neighbouring kingdom-effects of their acquaintance? which his lordship characterized as the most oppressive despotism. That when such attempts were made, he thought it the indis bring to trial every person who had been guilty of such seditious practices; and he considered the conduct of the panels, as appearing from the statement in the libel, as of a very aggravated and seditious nature. 2dly, They proposed to them to drink a toast, which, if not importing even a treasonable intent, certainly imported a most sedi-pensable duty of his majesty's advocate to tious and wicked wish, against our most gracious and beloved sovereign, a sovereign not only exemplary to monarchs, but to private men; a wish" that he might be the last of his race," and at the same time adding "Damnation to all crowned heads." Can such a wish be called the loose and thoughtless expression of juvenile conviviality? or does it not rather import a seditious speech, intending to inspire disloyal sentiments into the minds of the soldiers? 3dly, But the charge does not rest here, interest is the serious argument with mankind, especially of the lower rank: the charge states, that this was not overlooked. The prisoners tell the soldiers their pay was too small-what is sixpence a day to a soldier? You shall have higher pay if you will join with the friends of the people, or a club for equality and freedom? Friends of the people! What are friends of the people? Are the people friendless? The people, who are they? No doubt the common people-Is not this a clear innuendo, that the common people are friendless, have no friends but this club? that they are oppressed; and joining this with the toast and the damnation, what is the inuendo? And who is held out as the oppressor? Then this club for equality-Tis a general equality! The absurdity and impossibility of such an equality have been already described. The club for freedom too! as if we were not free, as if we needed this club to assert our freedom. Is there one here present who can name a time when this nation had ever more freedom than now; had more security for life, liberty, and property, than at this moment, or indeed so much? The state of the present times, both at home and abroad, is the strong ingredient to make the intent serious and manifest. I am, therefore, clear upon the whole, that the particular articles amount to the crime stated in the general charge, viz. seditious speeches, tending to create disloyalty and disaffection to his majesty, and to the established government, and an attempt to corrupt and seduce the military from their duty; and, therefore I concur in the interlocutor upon the relevancy that has been proposed. Lord Abercromby observed, that the words as stated in the indictment, stripped of every other circumstance, were in themselves highly wicked and seditious; and, that had the pannels gone a little farther, they would have been guilty of high treason. His lordship then adverted to the numerous seditious meetings and associations in different parts of the country, and to the means that had been every where so industriously employed by the members of such associations to The Lord Justice Clerk, after expressing his entire concurrence in the sentiments delivered by all of their lordships, observed, that it was no good defence to say, that the words here spoken were mere verba jactantia. They were obviously of a most wicked and seditious import; and no plea of rashness, wantonness, or conviviality could be admitted as an excuse. His lordship illustrated this by referring to the horrid crime of blasphemy, where, though the words uttered could be nothing else than mad or foolish in the extreme, still they were impious and wicked, and might, in certain circumstances be cognizable, and severely punishable by a criminal court. The Court then pronounced the following INTERLOCUTOR. The lord justice clerk, and lords commissioners of justiciary, having considered the criminal libel, raised and pursued at the instance of his majesty's advocate, for his majesty's interest, against John Morton, James Anderson, and Malcolm Craig, panels, with the foregoing debate. They find the libel relevant to infer the pains of law; but allow the panels, and each of them to prove all facts and circumstances that may tend to exculpate them, or alleviate their guilt; and remit the panels with the libel, as found relevant, to the knowledge of an assize. (Signed) ROBT. M'QUEEN, J. P. D. The following persons were then named, to pass upon the assize of the panels. William Lamb, upholsterer in Edinburgh. David Thomson, merchant there. Thomas Brown, merchant there. Alexander Laidlaw, tin-plate worker there Andrew Boog, cutler there. James Ranken, wright, there. Orlando Hart, shoe-maker there. John Fairbairn, bookseller there. James Dewar, cloth-merchant there. Peter Hill, bookseller there. David Ramsay, printer there. John Bell, bookseller there. James Hunter, merchant there. Thomas Reid, watch-maker there. Alexander Anderson, merchant there. Who were all lawfully sworn, and no objection on the contrary. The procurators for the prosecutor, for proof of the libel, proceeded to adduce the following witnesses, who, being all lawfully sworn, purged of malice and partial counsel, emitted their depositions viva voce, in presence of the Court and Jury, without being reduced into writing, in terms of the statute. 1st, Thomas Hume, corporal in the grenadier company of the 37th regiment of foot, deposed, That, on Sunday, the 18th November last, when sitting in the canteen, a soldier of the name of Huxter called him, and said, there were some persons in king James's room (this room is on the opposite side of the canteen) who wanted to see him: That he accordingly went there, where he saw eight persons, among whom were the prisoners: That Anderson immediately arose, and taking him by the hand, said, You are a clever fellow, and ought to join our club for freedom and liberty. Upon this he took some silver from his pocket, and holding it out to him, said, 'Your pay is small-6d. avery day-what is that! Were you to join us 'you would have 1s. 6d. a-day? That at this time they were drinking, and Anderson proposed as a toast,' George the third and fast, and damnation to all crowned heads:' That the others also joined in this, but he, the corporal, refused, and drank Success to George Sd, and all the royal family? Upon this Anderson made a blow at him, which he returned, and then went out of the room to Captain Cameron, the senior officer then in garrison, whom he informed of what had happened: That Captain Cameron desired him to order the barrier guard to let no person go out of the garrison without his express orders. Having done so, he returned to the canteen, at which time the panels, along with the other persons who were in their company, were coming through the square, when one, but he could not say which of them, cried, Damn the King and the Castle too. 2nd, Thomas Smith, drummer in the 37th regiment of foot. 3rd, Alexander Stronach, soldier in the 37th regiment. 4th, Michael Fish, soldier in the 37th regiment of foot. 5th, James Lawson, soldier in the 37th regiment of foot. 6th, James Erwin, soldier in the 37th regiment of foot. 7th, Captain Alexander Cameron, of the said 37th regiment of foot. 8th, James Girvane, journeyman hairdresser in Edinburgh. 9th, George Knowles, journeyman hairdresser in Edinburgh. It having been observed by the Court, that said George Knowles, the last witness, had been guilty of gross prevarication upon oath; therefore the said lords grant warrant to and ordain any of the macers of court, to apprehend the said George Knowles, and to commit him prisoner to the Tolbooth of Edinburgh, therein to be detained till TuesVOL. XXIII. day, the 22d day of January instant, and then to be set at liberty. (Signed) ROBT. M'QUEEN, J. P. D. 10th, Alexander Rentoul, keeper of the Lower Canteen, in the Castle of Edinburgh.* The prosecutor being then about to adduce witnesses for proving the declarations, the panels judicially admit that the declarations libelled on, were emitted by them respectively, voluntarily and freely, of the dates they bear, and that they were at the time sober, and in their sound senses. (Signed) James Anderson. John Morton. Malcolm Craig. ROBT. M'QUEEN, J. P. D. The declarations being then read over in that he closed his evidence. open court, his majesty's advocate declared On the part of the panels, several witnesses were called, some of whom said, they did not recollect such toasts being drunk. Their evidence also went strongly to prove, that the panels had no bad intention when they went to the Castle; and it was pretty clearly established, that one part of the company went for the purpose of seeing a young girl, and to present her with a breast-pin. The girl's evidence was to this effect. The other part of the company accounted for their going to the Castle by showing, that it was in order to gratify their curiosity to see king James's room. They also brought witnesses to prove, that they belonged to none of the societies called the Friends of the People, and that their characters were unimpeachable.+ The following were the witnesses in exculpation. ist, William Grierson, apprentice to Mr. James M'Kenzie, goldsmith in Edinburgh. 2nd, Robert Thomson, brush-maker, at the brush manufactory in Edinburgh, carried on by the representatives of the deceased William Muirhead, brushmaker in Edinburgh. 3rd, Thomas Huxter, soldier in the 37th regiment of foot. 4th, Janet M'Farlane, servant to ensign Frederick Rudolph Bruce, of the invalid company, in the Castle of Edinburgh. 5th, Catharine Loudown, alias Knowles, wife of George Knowles, journeyman hairdresser in Edinburgh. 6th, Francis Rae, journeyman printer, in the office of said Mundell and Son. 7th, James Scrymgeour, apprentice to the said Mundell and Son. *The above nine witnesses corroborated the evidence of Hume; but I have not been able to procure any account of their testimony. Of the evidence adduced on behalf of the panels, I regret that I have not been able to procure a better account than the above. C |