personally present or not; for supposing this to be the case, the respondent, who was no member, and who never was but at one committee meeting, where no resolution was passed, can in no view be criminated from any thing that passed, either at the previous or subsequent meetings. | 30th, the day on which the respondent was present at the committee meeting, seditious resolutions may have passed in the conven tion, yet of these the respondent was neces sarily in ignorance, till several days after, when the next Gazetteer came out, and his presence at that meeting, therefore, can afford no reasonable presumption of his having approved, since he could not know of these proceedings. As therefore nothing was done of a criminal nature at the only meeting at which the respondent was present, and he had no connexion either more or less with any other meeting, he is humbly hopeful that your lordships will be satisfied, that this charge cannot amount to any such behaviour on the part of the respondent, as to warrant the forfeiture of the bail-bond in question. It is material also for your lordships to be informed, that although the meeting at which the respondent was present is called the eleventh meeting of the convention, yet at that time their proceedings had only been published down to Saturday the 23rd of November. These resolutions appeared in the Gazetteer of the 26th, and no other paper was published till some days after the 30th, the day on which the respondent is charged to have been present at a meeting of the convention; and it will be particularly observed, that these proceedings, previous to the 23rd, which were all the respondent could possibly be acquainted with, contained none of those seditious resolutions for which some of its members have so properly been called to account. On the whole, when your lordships reflect that the respondent has already suffered three months imprisonment, besides a heavy loss upon giving up the Gazetteer, in consequence of the former sentence of your lordships, and that however imprudent he may have been, in holding any communication with Mr. Skirving; that the respondent's letters, how ever unguardedly expressed, import nothing beyond a view to a constitutional reform in parliament by constitutional means, while the single meeting at which he was present, passed no illegal resolution, and the respondent was totally ignorant at this time, that any such resolutions had passed at any former meetings; he trusts that your lordships justice and humanity will lead you to be satisfied, that no cause has been shown for forfeiting the bail-bond; and he even flatters himself, that though a sense of his own duty, and a just regard for the public interest, induced the public prosecutor to make the present appli cation, he will not be inclined, now that matters are explained, to regret that your lordships should dismiss the complaint. In reHENRY ERSKINE. The respondent, therefore, when he unguardedly went to that meeting, had it not in his power to know that any seditious measures had been adopted by the convention, or even that they had departed from the apparently constitutional footing on which it is admitted in the complaint they set out. On the contrary, the only resolutions which at that time had been published, were still holding out the measure of petitioning parliament, as appears by the speech of one of the members publehed in the Gazetteer of the 26th of November, which contains the whole resolutions which had been made public previously to the meeting at which the respondent is charged with having been present. In that speech the member proposes the petition to parliament to be rendered as respectable as possible by the number of names adhibited thereto.spect whereof, &c. Although, therefore, it may be true, that between the 26th, when the Gazetteer containing the previous resolutions came out, and the No further procedure took place, nor did captain Johnston sist himself in court. 592. Proceedings in the High Court of Justiciary at Edinburgh, against JAMES THOMSON CALLENDER, WALTER BERRY, and JAMES ROBERTSON, for Writing, Printing, and Publishing a Seditious Libel, January 28th, February 18th, 19th, 22nd, and March 18th: 33 GEORGE III. A. D. 1793. Cutia Justiciaria S. D. N. Regis, tenta in Nova Sessionis domo de Edinburgh, vicesimo octavo die Januarii, millesimo septingentesimo et nonagesimo tertio, per honorabiles viros Robertum Mac Queen de Braxfield, Dominum Justiciarium Clericum, Alexandrum Murray de Henderland, Davidem Rae de Eskgrove, Joannem Swinton de Swinton, Dominum Gulielmum Nairne de Dunsinan, baronetum, et Alexandrum Abercromby de Abercromby, Dominos Commissionarios Justiciariæ dicti S. D. N. Regis. INDICTED and accused at the instance of Robert Dundas, esquire, of Arniston, his majesty's advocate, for his majesty's interest, for the crimes of writing, printing, publishing, and circulating a seditious pamphlet, in manner mentioned in the criminal libel raised thereanent; bearing, that albeit, by the laws of this and all other well governed realms, the wickedly and feloniously writing, and printing, or causing to be written and printed any seditious pamphlet, containing false, wicked, and seditious assertions, calculated to degrade and bring into contempt our present happy system of government, and withdraw therefrom the confidence and affection of our subjects; as also, the wickedly and feloniously publishing, circulating, and selling, any such wicked and seditious pamphlet when so printed, or the causing the same to be published, circulated, and sold, among the inhabitants of this country, are crimes of an heinous nature, dangerous to the public peace and severely punishable: Yet true it is, and of verity, that the saids James Thomson Callender, Walter Berry, and James Robertson, above complained upon, have presumed to commit and are guilty of all and each, or one or other of the aforesaid crimes, actors or art and part: in so far as, upon one or other of the days of the month of May, in the year one thousand seven hundred and ninetytwo, or upon some other day in that year to the public prosecutor unknown, the said James Thomson Callender did at Edinburgh, in the county of Edinburgh, or at some other place to the public prosecutor unknown, wickedly and feloniously compose and write, or cause to be composed and written a seditious pamphlet, intituled, "The Political ProIgress of Great Britain, or an Impartial AcCount of the principal Abuses in the Govern'ment of this Country, from the Revolution in 1688. The whole tending to prove the ruinous consequences of the Popular System of War and Conquest-the World's Mad 'Business. Part 1st.' Which pamphlet is of a wicked tendency, and contains the following, among other wicked and seditious passages, (pages nineteenth and twentieth of the printed copies of said pamphlet): "There is a cant expression in this country, that our government, is deservedly, the wonder and envy of the world.' With better reason it may be said, that parliament is a mere out-work of the court, a phalanx of mercenaries embattled against the reason, the happiness, and the liberty of mankind. The game laws, the dog act, the shop tax, VOL. XXIII. the window tax, the pedlar tax, the attorney tax, and a thousand others, give us a right to wish that their authors had been hanged." Again, in a note at the bottom of page seventythird of the printed copies of the said wicked and seditious pamphlet: "What our most excellent constitution may be in theory, I neither know nor care. In practice it is altogether a conspiracy of the rich against the poor." Again, in page fifty-eight: "The German princes, and among others, the elector of Hanover expressed their highest disapprobation of the projected peace. The arguments of George, if such they may be called, are too frivolous for confutation, or insertion here. Portugal and Savoy seconded the German corps. The emoluments derived from war, were greater than their expectations from peace. The money of the maritime powers and chiefly that of England, more than the territories of the House of Bourbon, was the grand object of those petty tyrants, who fed on the blood of subjects whom they let out for slaughter.' Compared with merchants of this description, an ordinary offender is a paragon of innocence. When a nation sends for sovereigns from such a school, there appears but a melancholy presage of the prospect before it." Which wicked and seditious pamphlet containing the foresaid wicked and seditious passages, the said James Thomson Callender delivered to the said James Robertson and Walter Berry, or to one and both of them, or one or other of them upon one or other of the days of the said month of May, in the year one thousand seven hundred and ninety-two, or of April im mediately preceding, or June immediately following, or upon some other day to the public prosecutor unknown, in order to be printed; and the said James Robertson and Walter Berry, did one and both or one or other of them, accordingly print the said wicked and seditious pamphlet, or cause the same to be printed at the printing office of the said James Robertson in the Horsewynd aforesaid, upon some of the days of the said months of May or June, in the year one thousand seven hundred and ninety-two, and having caused à thousand copies or thereby of the said wicked and seditious pamphlet to be thrown off, they were sent to the shop on the South bridge possessed by the said James Robertson and Walter Berry; and the said James Robertson and Walter Berry, did one and both, or one or other of them, during the months of July, August, September, October, November, and December, in the said year, one thousand seven hundred and ninety-two, sell or cause to be sold many copies of the said wicked and seditious pamphlet from their said shop in South Bridge-street of Edinburgh. And the said James Robertson having been appre hended and carried before John Pringle, esquire, advocate, our sheriff depute of the county of Edinburgh, he did upon the twentyninth day of December, seventeen hundred G and ninety-two, in his presence emit a declaration, which however he refused to sign; and the said Walter Berry being likewise examined in presence of the said John Pringle, esquire, did emit and sign a declaration upon the said twenty-ninth day of December, seventeen hundred and ninety-two; and the said James Thomson Callender having been examined in presence of the said John Pringle, esquire, on the first day of January, seventeen hundred and ninety-three, did also of that date emit and sign a declaration; which three declarations are all signed by the said John Pringle, esquire, and being to be used against the said James Thomson Callender, James Robertson, and Walter Berry, respectively upon their trial, will for that purpose together with a printed copy of the foresaid wicked and seditious pamphlet, being one of those sold by the said James Robertson and Walter Berry as aforesaid, which is subscribed by the said Walter Berry, and the said John Pringle, esquire, and other persons, be lodged in due time 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, times and places foresaid the said wicked and seditious pamphlet containing the foresaid wicked and seditious passages, was written, printed, published, circulated, and sold as aforesaid; And the said James Thomson Callender, James Robertson, and Walter Berry, above complained upon, are all and each, or one or other of them, guilty of the foresaid crimes, or one or other of them, actors or art and part. 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 twenty-eighth day of January instant, the said James Thomson Callender, James Robertson, and Walter Berry, ought to be punished with the pains of law, to deter others from committing the like crimes in all time coming. And James Thomson Callender, messenger at arms, and writer in Edinburgh, likewise indicted in the said criminal letters, being oft times called in court, and three times at the door of the court-house, as use is, failed to appear. Whereupon his majesty's advocate moved, that sentence of fugitation and outlawry, might be pronounced against him. The lord justice clerk and lords commissioners of justiciary, decern and adjudge the said James Thomson Callender, to be an outlaw and fugitive from his majesty's laws: and ordain him to be put to his highness's horn, and all his moveable goods and gear, to be escheat and inbrought to his majesty's use, for his contempt and disobedience in not appearing this day and place in the hour of cause, to have underlyen the law, for the crimes specified in the said criminal letters, raised against him, thereanent, as he who was lawfully cited to that effect, and ofttimes called in court, and failing to appear as said is. (Signed) ROBT. MAC QUEEN, I. P. D. Thereafter his majesty's advocate represented, that he was determined to use every endeavour to apprehend the person of the said James Thomson Callender, and still to bring him to trial before their lordships, and a jury of his country, along with the panels, Berry and Robertson, and with that view, he was under the necessity of moving their lordships, for a continuation against the panels to some future day, between and which, he would use every effort to bring Callender to their lordships' bar. The diet continued against Berry and Robertson till Monday the 11th day of February next, at ten o'clock. [In the record of the proceedings of the Court on the 11th of February this case is not mentioned. No farther proceedings took place with respect to Callender. Berry and Robertson were then proceeded against on another indictment.] Indicted and accused-at the instance of Robert Dundas, esquire, of Arniston, his majesty's advocate, for his majesty's interest, for the crimes of printing, publishing, circulating and selling a seditious writing or pamphlet, in manner mentioned in the criminal libel raised against them thereanent; bearing, that albeit by the laws of this, and of all other well governed realms, the wickedly and feloniously printing, or causing to be printed, any seditious writing or pamphlet, containing false, wicked, and seditious assertions, calcu A short account of this Case was published by Dr. Anderson in the Bee, No. 125, April 24th, 1795. [86 lated to degrade and bring into contempt our 'jects whom they let out for slaughter. present happy system of government, and with- Compared with merchants of this description, draw therefrom the confidence and affection an ordinary offender is a paragon of innocence. of our subjects; as also the wickedly, and feloni- When a nation sends for sovereigns from such ously publishing, circulating, and selling such a school, there appears but a melancholy prewicked and seditious writing or pamphlet, sage of the prospect before it." And the said when so printed, or the causing the same to James Thomson Callender, having delivered be published, circulated, and sold among the the said wicked and seditious writing or inhabitants of this country; are crimes of an pamphlet, containing the aforesaid false, heinous nature, dangerous to the public wicked, and seditious passages, and others peace, and severely punishable: Yet true it of a similar tendency, to the said James is, and of verity, that the said Walter Berry Robertson and Walter Berry, or to one and James Robertson above complained on, and both of them, or to one or other of have presumed to commit, and are guilty of them, upon one or other of the days of the all and each, or one or other, of the aforesaid said month of May, in the year 1792, or of crimes, actors, or art and part: In so far as April immediately preceding, or of June imupon one or other of the days of the month mediately following, or upon some other day of May, in the year 1792, or upon some other to the public prosecutor unknown, the said day in that year to the public prosecutor unJames Robertson and Walter Berry, did one known, James Thomson Callender messenger and both, or one or other of them, wickedly at arms, and writer in Edinburgh, having at and feloniously print the said wicked and Edinburgh, in the county of Edinburgh, or at seditious writing or pamphlet, or caused the some other place to the public prosecutor un- same to be printed, at the printing-office known, wickedly and feloniously composed of the said James Robertson in the Horseand written, or caused to be composed and wynd, aforesaid, on some of the days of written, a seditious writing or pamphlet, in- the said months of May or June in the tituled, "The Political Progress of Britain, or year 1792; and having caused a thousand an Impartial Account of the principal Abuses copies, or thereby, of the said wicked and sediin the Government of this Country, from the tious pamphlet to be thrown off, they, or Revolution in 1688. The whole tending to part thereof, were sent to the shop on the prove the ruinous Consequences of the Popular South Bridge, possessed by the said James System of War and Conquest. The World's Robertson and Walter Berry; and the said Mad Business. Part 1st." which writing or James Robertson and Walter Berry did, one pamphlet is of a wicked tendency, and con- and both, or one or other of them, during tains among other wicked and seditious pas- the months of July, August, September, Ocsages, the following (pages 19th and 20th of tober, November, and December, in the said the printed copies of said pamphlet): "There year 1792, wickedly and feloniously sell and is a cant expression in this country, that our circulate, or cause to be sold or circulated, government is deservedly the wonder and from their said shop, in South Bridge-street envy of the world;' with better reason it of Edinburgh, many copies of the said wicked may be said, that parliament is a mere out- and seditious pamphlet so printed and pubwork of the court, a phalanx of mercenaries, lished by them. And the said James Thomembattled against the reason, the happiness, son Callender having been indicted at the and the liberties of mankind. The game laws, instance of the public prosecutor to stand the dog act, the shop tax, the window tax, the trial before the high court of justiciary upon pedlar tax, the attorney tax, and a thousand the 28th day of January last, for the crime of others, give us a right to wish that their writing and composing the said seditious authors had been hanged." Again, in a note pamphlet, he, conscious of his guilt, and in at the bottom of page 23rd, of the printed copies order to evade the punishment of the law, of the said wicked and seditious pamphlet; did abscond, and has been fugitate by a sen"What our most excellent constitution may tence of that high court. And the said James be in theory, I neither know nor care; in Robertson having been apprehended and carpractice it is altogether a conspiracy of the ried before John Pringle, esq., advocate, our rich against the poor." Again, in page 58th, sheriff depute of the county of Edinburgh, he "The German princes, and among others, did upon the 29th day of December, 1792, in his the elector of Hanover, expressed their highest presence, emit a declaration, which however disapprobation of the projected peace. The he refused to sign: and the said Walter arguments of George, if such they may be Berry being likewise examined in presence called, are too frivolous for confutation, or of the said John Pringle, did emit, and sign insertion here. Portugal and Savoy seconded a declaration upon the said 29th day of Dethe German chorus. The emoluments de-cember, 1792; which two declarations are rived from war, were greater than their expectations from peace. The money of the maritime powers, and chiefly that of England, more than the territories of the house of Bourbon, was the grand object of these petty tyrants, who fed on the blood of sub signed by the said John Pringle, esq, and, being to be used in evidence against the said James Robertson and Walter Berry, respectively upon their trial, will, for that purpose, together with a printed copy of the foresaid wicked and seditious pamphlet, being one of those sold by the said James Robertson and Walter Berry as aforesaid, which is subscribed by the said Walter Berry, and the said John Pringle, esq., and other persons, be lodged in due time 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, times and places foresaid, the said wicked and seditious writing or pamphlet containing the foresaid wicked and seditious passages, and others of a similar tendency, was wickedly and feloniously printed, published, circulated, and sold, as aforesaid; and the said James Robertson and Walter Berry, above complained upon, are, both and each, or one or other of them, guilty of the foresaid crimes, or one or other of them, actors, or art and part. All which, or part thereof, being found proven, by the verdict of an assize, before the 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 18th day of February, instant, the said James Robertson and Walter Berry 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 thereupon, they answered they were not guilty. Pro'rs for the Prosecutor.--Robert Dundas, esq., of Arniston, his majesty's advocate. Mr. Robert Blair, advocate, his majesty's solicitor general; and Mr. James Montgomery, advocate. Pro'rs for the Panels.-Mr. Alex. Wight, advocate; and Mr. Arch. Fletcher, advocate. Mr. Fletcher for the panels, represented, that he hoped their innocence would be vindicated upon a fair investigation of this matter. That in the outset he would observe, that they had been both in America during the war there, where they had manifested the highest loyalty, and suffered deeply by loss of property on that account. That the case now before the Court, involves in it no less than the liberty of the press, and, if the tendency of this prosecution shall strike at that privilege, it must be infinitely more injurious to the happy constitution of this country than fifty publications such as that now under discussion. If the liberty of the press is affected, a total darkness in political knowledge must ensue, the constitution must receive a mortal stab, and may, at last, perish. That it is submitted, in point of relevancy, that, in judging of the pamphlet libelled, the whole must be taken together to decide on the character of the book, not the three passages selected. That the panels surely cannot be worse than the author, and his meaning must be sought. The coarseness of the expressions are more striking than the sentiment, that the words used meant more to mend the constitution, than to bring it into contempt. That the author, it was plain, was not writing against the institution of parliament, but against the practice of it; and the influence of the Crown was a topic of discussion in the house of Commons itself. Every subject has a right to canvass and examine the acts of the legislature, and deliver their opinions; no crime can be inferred, unless with intent to degrade, and bring into contempt, the system of government. But this publication seems to be written from bene volence to mankind in general;—not to vilify, and calumniate, but with a wish to correct and reform, and the same words almost have been used in other authors published long ago, viz., Resolutions by the duke of Rich nond published in 1780, and Dr. Burgh's Political Disquisitions, page 406. But, 2dly. whatever may be the criminality of the au thor, the same does not apply to the panels. They only received the copy, printed, and sold it in the way of their business. simple act of printing and selling, is not cri minal; besides, great part of it was printed before in a publication called the Bee, and not considered of any seditious tendency. The panels sold it with no such view, but merely for gain, and not by stealth, but openly and fairly, and the same was sold by almost every other bookseller in Edinburgh, be found not relevant. and therefore he craved, that the libel might The Mr. Montgomery answered, that the charge now brought against the panels was not printing certain passages pointed out in the libel, but the whole pamphlet, which, taken toge ther, is a wicked and seditious libel. That the liberty of the press can only be supported, by suppressing publications such as that now libelled on; for, if such licentiousness is not curbed, the liberty of the press, and the liberty of the people, must fall together. That the passages recited were highly crimi nal, and indeed admitted by the counsel for the panels, and the intention must be presumed, from the first reading of them. That passages similar may have been wrote is no excuse. The temper of the times must merit consideration. The minds of the people may be inflamed to gross enormities by publica tions at one time, that would have no bad effect at another, and the record of the Court will show how ill-timed, this publication was. 2dly. The printer and publisher, in this case, was worse than the author, as in forgery, the circulating is worse than the forger; and, therefore, upon the whole, there could remain no doubt of the relevance. And the panels with the libel, ought to be remitted to the knowledge of an assize in common form. The lord justice clerk and lords commis sioners of justiciary, having considered the criminal libel raised and pursued at the instance of his majesty's advocate, for his may |