The trial of Joseph Gerrald, delegate from the London Corresponding Society, to the British Convention. Before the High Court of Justiciary at Edinburgh, on the 3d, 10th, 13th, and 14th of March, 1794. For sedition. / Taken in short-hand by Mr. Ramsey.

The trial of Joseph Gerrald, delegate from the London Corresponding Society, to the British Convention. Before the High Court of Justiciary at Edinburgh, on the 3d, 10th, 13th, and 14th of March, 1794. For sedition. / Taken in short-hand by Mr. Ramsey.

Table of contents

Title page

PREFACE.

THE TRIAL OF JOSEPH GERRALD.

Monday, March 10, 1794.

Thursday March 13, 1794.

EVIDENCE FOR THE CROWN.

The Clerk of the Court then read the following SENTENCE:

LIST OF EXCULPATORY WITNESSES.

Witnesses to prove the charge in the declinature against Lord Justice Clerk.

APPENDIX

No. I.

21 July, 1704.

No. II. Joseph Gerrald's Prayer, on the forcibly breaking up of the Convention in Scotland.

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THE TRIAL OF JOSEPH GERRALD, DELEGATE FROM THE LONDON CORRESPONDING SOCIETY, TO THE BRITISH CONVENTION. BEFORE THE HIGH COURT OF JUSTICIARY AT EDINBURGH, On the 3d, 10th, 13th, and 14th of March, 1794. FOR SEDITION.

TAKEN IN SHORT-HAND BY MR. RAMSEY.

NEW-YORK: PRINTED AND SOLD BY SAMUEL CAMPBELL, No. 124, PEARL-STREET. 1794.

PREFACE.

[Page]

THE importance of the following trial to the Public at large is too well known to need any comment on that head from the Editor; nor would he deem it necessary to say any thing in addition to so valuable a publication, by way of preface, were it not that the Public expectation has been so greatly alive, and its impatience in no small degree excited by a seeming delay in bringing it out. The Editor, in justice to himself, cannot suffer it to appear, without adding a few words in his own justification, and requesting that the Public will believe his assurance, that every expedition has been used on his part to bring it forward earlier; but as it is the custom of the short-hand writer to leave blanks for the several quotations, it became a matter o [...] greater difficulty to get these filled up, with exactness and precision, than can well be conceived by those who are not very conversant in these matters; especially as Mr. Gerrald was removed from Edinburgh so soon, that the editor could not avail himself of his assistance in this respect, except in a very slight degree, before his departure; and having had occasion to make the application to him, from time to time, on that head since his arrival in London, the unavoidable delays attending communications at such a distance, rendered it impossible to publish the Trial sooner.

When it is considered that in a matter of so much moment to the rights, liberties, and privileges of every Briton, as this celebrated trial involves, a trial which has been advocated in a stile so truly brilliant and distinguished, both by the learned and ingenious counsel on the relevancy of the libel, and by Mr. Gerrald, the Pannel, whose literary fame and splendid talents are as much admired, as the severity of his sentence is lamented; from these circumstances it is presumed that no blame can be attached to the Publisher, whose aim has been to have the Trial impartially stated and accurately laid before the Public.

EDINBURGH, MAY 3, 1794.

THE TRIAL OF JOSEPH GERRALD.

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THE Members of the Court of Justiciary assembled precisely at ten o'clock, in the forenoon. Mr. Gerrald appeared, and placed himself at the bar.

His Majesty's Advocate, for his Majesty's interest, having been, in the usual form, called against the pannel,

Mr. Gerrald said, My lord, I understand I am authorized to demand that a l [...]st of my exculpatory witnesses be read out in Court before the Trial proceeds.

Lord Justice Clerk. The criminal libel must be read first—that is the first thing to be done.

Lord Advocate. Before your lordships proceed to reading the libel, I feel i [...] my duty to tell the pannel, that if he means to persevere in an application which he signified to me yesterday, by letter, the proper period for him to do it is at this moment, before the indictment is read.

Mr. Gerrald. My lords, as I am totally ignorant of the law of this country, being a native of England, I applied to several gentlemen of the profession, to advocate my cause; they unanimously released—in consequence of which, I wrote a line to the Lord Advocate, as he has stated, mentioning that I should certainly make an application to the court to appoint me counsel. Your lordships very much lamented, that in former cases, counsel had not been applied for; and, though the Court are bound to act as counsel for the prisoner, yet the pannel, no doubt, wishes to avail himself of every advantage that he can. I stand peculiarly circumstanced, because, not being a native of this country, and being ignorant of its laws, without an advocate, I should he deprived of the benefit of their benignant interpretation, as the public prosecutor will no doubt state the charge as strongly as he can on the part of the Crown; I therefore offer it as a suggestion to your lordships consideration.

Lord Justice Clerk. What do you say to this, my Lord Advocate?

Lord Advocate. My lord, I don't see that there is any thing put [Page] to me by the pannel; it seems to be an application to the Court: however, I will state, in a very few words, what occurs to me; and I wish that the pannel should hear what I say, and that the gentlemen of the jury, and of the country at large, should know what I have to state.

My lord, while this British convention, or what I never shall cease to term it, a conspiracy against the constitution of this country, assembled for many days within this city, and when they had proceeded, by my information, to a length which called upon the officers of public justice to interfere, I had occasion to direct those steps which appeared necessary for an enquiry into the subject; and, upon the morning of the 5th of December, the ringleaders of this convention (and this pannel one of them) were apprehended. My lord, the necessary investigations took some time ere they were completed; but it was my habit to bring those who appeared to me the most guilty, to a fair trial before their country, as early as possible. The first person that I brought forward in the list was the man who appeared to be most guilty, I mean Skirving, who stood trial, in this Court, upon the 6th of January; and the indictment that I felt it necessary to bring next in order, was the charge against the pannel now at the bar, which was served upon him in the month of December, and the day fixed for the 8th of January. The day after the libel was executed upon him, at his residence in Edinburgh, I received from him a letter in which he appealed to my humanity as well as justice, that I should consent to a delay of his trial for a fortnight, that he might return to England, and settle the affairs of a family dependent upon him. I instantly acceded to his request, and gave him more than he asked; I gave him till the 27th of January; and it appears, that upon the evening of Friday the 24th of January, from his own account of the matter, he left London, which would have brought him into this city, a few hours, by the utmost possible expedition, a very few hours before his trial was to commence. By the accidental circumstance of a heavy fall of snow, he was prevented from reaching it that morning. Your lordships and the jury know what passed upon that occasion. I then felt it my duty to bring before the Court for trial, the young man who sits at his right hand, [Mr. Charles Sinclair] and he did not state any refusal of my brethren to plead; as I trust they will do, every cause which the highest or the meanest criminal is entitled to state, at that bar. I cannot therefore perfectly credit that what Mr. Sinclair received should be denied to Mr. Gerrald. But, if it is so, considering that he sat this day fortnight, at the side of that person, and I indulged him again at his own request, telling him, that he need not attend Last Monday, but that this precise day was the day on which I determined to go to trial with him. A fortnight afforded him surely opportunity enough to have applied to your lordship's justice; and every counsel at the bar would, I am sure, have appeared and stated for him every thing that it was competent for him to state. But at four o'clock yesterday, I received [Page] from him a letter, the purport of which he has now stated; and I should feel myself acting only in the proper and due execution of my duty, if I were to argue to your lordships to refuse that application. But there are circumstances which I know, and which I trust will enter into your lordships consideration in giving your opinion upon this application. I hope and trust that the administration of the criminal justice of this country, however calumniated, however aspersed, is able to stand the test in competition with the administration of the criminal justice of England, or of any country upon the face of this earth. And, late as he comes with his demand, although, perhaps in a few hours, I must leave this country to attend my public duty in London, that can be no objection; the conduct of the criminal justice of this country remains in abler hands than mine. I trust your lordships (without affording a precedent to other pannels to come with an expectation of being listened to upon so late an application) will accede to his request, for these reasons; and to satisfy Mr. Gerrald, that if he has come to this country, a stranger to its laws, and if he has presumed to offend highly, as I charge that he has, that he has not received that strict administration of justice, in this country, which he would in his own, but that he has received that indulgence which calumny itself cannot reach.

Lord Justice Clerk. The pannel is certainly very late in his application, at the same time in the circumstances of this case, I am not for cutting him short, however late he may be. I think he is right in making application for the assistance of counsel as a stranger to this country; and I don't see that he can be supposed to know the laws of this country. I think he is right, and I am, for my own part, for giving him counsel. What do your lordships say to it?

Lord Henderland. I own it is my opinion that this pannel, and every pannel, whatever be the charge against him, should come to your lordships bar prepared and assisted by counsel. It is very true, that the judges are counsel for the pannel, to a certain degree; but their duty is limited; in the first place upon the relevancy of the indictment, to see that no charge shall be admitted against the pannel which does not necessarily and logically infer the crime; the next part of their duty is to take care that no evidence shall be admitted but what is legal and unexceptionable; the third part of their duty generally falls upon the presiding judge to address the jury upon the evidence, as by act of parliament, and to state it to them fairly. If any error is committed, I dare say the court would interfere: that has never been the case, and I hope never will, while your lordship sits as judge; but there are cases in which a counsel may be of great use to a man: arguments may be made use of which might otherwise have escaped. I think he ought to be assisted by counsel; and therefore I am extremely willing that he should, though I think this gentleman has come exceedingly late indeed. I am not ready perhaps to enquire, because I cannot know what were his motives for being [Page] so late in his application; but I cannot suppose he could be ignorant of the right he had to apply for counsel. And I must regret too that my Lord Advocate is going to attend his duty in parliament who has so well and ably conducted the other trials; and in whose humanity, as well as abilities, I think this country may place great confidence. I must regret that he is obliged to be absent: yet notwithstanding that, I agree with your lordship in desiring that this man should be assisted by counsel, and that he should suggest who are the gentlemen that he wishes to have. I think that is the proper way; the List of Faculty is open to him, and I will venture to say, there is not a man in it but what is fit in proportion: some of them may be in experience more or less able, but there are none of them but what may be very well intrusted with his defence. However, in order to give him every indulgence, he shall have his choice; at the same time recommending to him not wantonly to interfere with the superior avocations of a gentleman at the bar, whom the Court are not induced to trouble with impositions upon this head, from a pannel.

Lord Justice Clerk. Have you an agent?

Mr. Gerrald. No, my Lord; I have applied to two or three, and they have refused. I applied to a gentleman to whom I have not had the honour of being long known, but knows me and my connections extremely well, and who would undertake my cause, but for reasons which I am not authorized to tell in Court. Mr. Laing is the only gentleman whose refusal I have authority to mention. The two gentlemen I would wish to employ, are the Dean of Faculty and Mr. Laing with your lordship's approbation.

Lord Justice Clerk. If the Dean of Faculty does not object; but if he should, he is a gentleman whose attendance we cannot compel.

Mr. Gerrald. If the Dean should refuse, I shall prefer Mr. Fletcher.

Lord Justice Clerk. We shall just now name Mr. Fletcher and Mr. Laing.

Lord Eskgrove. I think you had better suggest one or two more, in case of any accident, that they cannot attend.

Mr. Gerrald. I feel extremely the indelicacy, and would rather be deprived of the benefit of counsel, than drag any gentleman into an office the duties of which he would reluctantly fulfil.

Lord Justice Clerk. Even without the interference of the Court, I think no gentleman ought to refuse to defend a pannel, whatever the nature of his crime might be. Now, name another.

Mr. Gerrald. I have the honor of being known to Mr. Gillies.

Lord Justice Clerk. Will you name a fourth?

Mr. Gerrald. No, my lord; they will be quite sufficient.

Lord Justice Clerk. Now, name an agent.

Mr. Gerrald. I will leave it to your lordships, if you please.

[Page] Lord Justice Clerk. No, you must name one yourself. Name two, and you will be sure of one or other.

Mr. Gerrald. Mr. James Gibson, and Mr. James Campbell.

Lord Justice Clerk. Now I am sure you must be conscious that you have had all kinds of indulgence; but you must be ready next Monday.

Mr. Gerrald. As to myself I am perfectly ready to go on now with the defence which I originally intended to have made.

Monday, March 10, 1794.

The Court met agreeable to adjournment, when Mr. Gerrald again placed himself at the bar. The Assize being called over, and the Lord Justice Clerk having desired him to listen to his indictment,

Mr. Gerrald said, my Lords, I feel myself under the painful necessity of objecting to the Lord Justice Clerk sitting upon that bench, upon this plea, that his lordship has deviated from the strict line of his duty, in prejudging that cause in which my fortune, and my fame, which is more precious to me than life, is actually concerned I beg, therefore, that that (holding a paper in his hand) may be made a minute of this Court. My lords I am totally ignorant of the mode of conducting the evidence, and therefore shall rely upon your lordships candor for setting me right when I am wrong; and I understand your lordships are counsel for the prisoner, equally with those appointed by the Bench.

Lord Henderland. You must read it.

(Mr. Gerrald then read as follows)

"Joseph Gerrald stated, that before proceeding to trial upon the criminal letters raised against him, he must take the liberty of declining the Lord Justice Clerk, as having disqualified himself from judging in the present question, by having prejudged it. In order to show that this objection was not made at random, Joseph Gerrald offered to prove that the Lord Justice Clerk had prejudged the cause of every person who had been a member of that Assembly calling itself THE BRITISH CONVENTION; inasmuch as he had asserted, in the house of James Rochead, of Inverleith, that ‘the Members of the British Convention deserved transportation for fourteen years, and even public whipping;’ and, that when it was objected by a person present in company, that the people would not patiently endure the inflicting of that punishment upon the members of the British Convention, the said Lord Justice Clerk replied, ‘that the mob would be the better for the spilling of a little blood.’ I pray that this may be made a minute of the Court.

(The Lord Justice Clerk then left the Chair, which was taken by Lord Henderland.)

Lord Henderland. Have you subscribed it?

[Page] Mr. Gerrald. No, my lord; I did not know that that was necessary. (Subscribes it.)

Lord Henderland. Do you wish to be further heard upon it?

Mr. Gerrald. I desire to have the matters alledged substantiated by evidence.

Lord Henderland. Your lordships have heard the minute of the Court, concerning that respectable judge who has the honor to preside as Vice-President, in this Court, in the absence of the Lord Justice General. My lord, it is a thing perfectly new in the annals of this Court; nor is there one instance to be found in our records upon the books of adjournal. My lords, you have heard the nature of the complaint, which is as extraordinary as it is unprecedented; and it will become you, my lords, well to weigh what is the import, and what ought to be the legal effect, of such an objection offered, in such extraordinary circumstances, and at so early a period as this. You had it in a different form indeed, in the case of Margarot, but you will consider it in this new form, in this new guise which it has assumed; you will consider how far it is important in its nature, or how far it is the same that was offered in the case of Margarot; you are not prohibited from forming a different judgment upon it now from what you might have done then; but I thought it necessary to bring these matters under your lordships view, before you proceed to give your opinion upon this so unprecedented and extraordinary a minute. It is now submitted to your consideration.

Lord Eskgrove. My lords, this objection which comes before your lordships is a novelty in many respects; and I don't think this pannel at this bar is well advised in making it: what could be his motive for it I cannot perceive. He has the happiness of being tried before one of the ablest judges that ever sat in this Court; but he is to do as he thinks fit. I am sure he can obtain no benefit if he gains the end he has in view; and therefore I cannot perceive his motive, unless it is an inclination, as far as he can, to throw an indignity upon this Court.

As to the objection, I think there is no validity in it. In a former case, an attempt was made to start the same objection, by the person then to be tried. I don't observe that this gentleman says his name was ever mentioned in that conversation, or that any thing was said of him individually; but he says it was an expression, in common conversation, importing that honorable judge's opinion, that the members of the British Convention should be transported for fourteen years, and even publicly whipped. I do not conceive what interest this gentleman has in it; he has not yet acknowledged himself a member of that convention. My lord, one man's conduct may be different from another's in that assembly. As to the expression, it could only import, hypothetically, that, if that convention was guilty of the crimes stated against them, of that attempt to overthrow the constitution of their country, [Page] to create rebellion and insurrection, in the country, then the punishment adapted to such an offence, was, in his opinion, transportation and public whipping. What is there in that more than in the opinions given in this Court already, in causes of this kind? My lords, it has been said by all your lordships, in this Court, that if the persons who have been convicted had been brought to trial before the alteration of the treason law by the union, they would not have been tried as persons liable to arbitrary punishment, but recognizable as high treason; and the person at the bar under that accusation would have been tried for his life, and on conviction would have suffered the pains of death and forfeiture. If therefore by an alteration of the criminal law of the land, this crime, which goes to destroy the constitution of the country, is made an arbitrary punishment, that punishment must be the highest arbitrary punishment that can be inflicted; and therefore I see nothing in that opinion which imports more than your lordships have all said in this Court. I think it was nothing more than a general opinion, given upon the nature of the offence, as charged, that it was a convention of persons meeting to overturn the happy constitution of this country; and giving his opinion that such an offence merited that punishment. I am sure that can be no disqualification from sitting in this Court, where the same opinion has been given by all your lordships. It is stated here, that it was objected by a person present in company, that the mob would not patiently endure the infliction of that punishment. I don't know what could be the motive of any person to make such an observation, if they had any reason to believe such a thing: for my part, I think it is a most erroneous observation; for I have a better opinion of the mob, as it is called, the people of this country, than to think that they are capable of associating for acts of violence in defiance of the laws. I think better of the people of this country, than that they would meet together for the purpose of stirring up insurrection and violence. But, my lord, it is no more than saying this, that a mob, if they should be so ill-advised as to break out into an insurrection, with an intention to overthrow the constitution, they would not merit compassion, in case the magistrates should be reduced to the disagreeable necessity of resisting force by force; and that is an observation, which, I dare say, has been made by a thousand people besides his lordship; and it cannot be supposed that that was to prejudicate the trial of this gentleman, who will by his lordships and by the Court, be treated as an innocent man, till he is found guilty. My lord, to say that that is prejudicating him, because he spoke of punishment with one exception (a corporal punishment) which had been inflicted upon persons who had before been convicted, is carrying the objection beyond all degree of reason; and I can ascribe it to nothing but malevolence and—desperation.

[Page] Mr. Gerrald. My lord, I come here not to be the object of personal abuse, but to meet the justice of my country: had I been actuated by such motives, I am sure I should never have returned to this country.

Lord Henderland. I desire you will behave as becomes a man before this High Court; I will not suffer this Court to be insulted.

Mr. Gerrald. My lord, far be it from me to insult this Court—

Lord Henderland. Be silent, sir.

Mr. Gerrald. My lord—

Lord Henderland. I desire you will be silent, sir.

Mr. Gerrald. My lord, I am sure that my coming to this country shews that I am actuated by the purest principles of justice.

Lord Eskgrove. If I have said any thing wrong, I will very readily retract what I have said; but I was making an apology for this objection, that I cannot ascribe it to a solid objection of counsel, none of whom have stood up to support it. I meant nothing more by what I was saying; I am very sorry for the expression I made use of, and ask the gentleman's pardon; but, upon the whole, I think the objection an irrelevant one.

Lord Swinton. My lord, an objection of this kind, coming from any other man, I should consider as a very high insult upon the dignity of this Court; but, coming from him, standing in the peculiar situation in which he now stands at the bar, charged with a crime of little less than treason, the insolence of his objection is swallowed up in the atrocity of his crime. He has objected against a most worthy and respectable judge, that being in a public company at Inverleigh, he said that the members of the British Convention should be whipped and transported; and upon a lady saying the mob would not suffer it, his lordship is said to have answered that in that case they would deserve to lose a little blood. It appears to me, that there is not the smallest relevancy in this objection. There is no doubt but there are reasons why a judge may be declined according to an act of parliament: the law is, that if a judge has any interest in the cause, that he can either win or lose by it, if there is capital enmity between a judge and the party, that might be a good reason for his being declined.

Mr. Gerrald. My lord —

Lord Henderland. Once for all, sir, I must inform you that you are not entitled to interrupt the judges: if you have any thing to observe, after any one of them is done, you will be permitted to speak; but I desire you will behave with that decency which becomes you.

Mr. Gerrald. My lord, I respect the laws of my country, and I should not respect myself if I did not; which I flatter myself I shall always do: for, I hope, I never shall do any thing which can constitute a ground for self-degradation in my own opinion: but I spoke to his lordship, because I understood his lordship had addressed me, and that was the only reason of my speaking.

[Page] Lord Swinton. My lord, I say there is no relevancy in this objection. If any judge here shall have enmity against any man whatever, standing at that bar, it might be a good reason for his being declined; but in this case it would be absurd. I never heard of this man's name in my life, before he came into this country, and I dare say his lordship never did; and what interest he can have except that of compassion for a man in that unfortunate situation. I cannot tell; and I appeal to the feelings of every man; I say it is impossible. My lord, there is not the smallest ground to suppose that this man was prejudicated by that conversation; and therefore I think the objection is irrelevant.

Lord Dunsinnan. My lords, this objection is new, and not a little extraordinary; it very much surprised me. I shall enter into no observations upon his conduct; and I think your lordships ought to pay no attention to it, either in one shape or another.

Lord Abercrombie. My lords, as to the objection made by this pannel—if a judge is guilty of a breach of the sacred trust reposed in him, he is amenadable to the laws of his country, and may be impeached for the offence; he may be punished for it, and the law of this country has provided against it; but, my lord, that is not the shape in which this objection comes before you; it comes in the shape of a disqualification. Now, my lords, I know of no circumstance whatever which can disqualify a judge from sitting to discharge his duty, except those in the act of parliament. But, my lord, this objection applies equally to every judge who sits here. Sure I am, that upon every occasion when I have had an opportunity of giving my opinion upon the subject, I have never hesitated to say that I considered the British Convention as a conspiracy of a most dangerous and of a most criminal nature.

My [...], with regard to the unhappy man at the bar, there is not a doubt that the presumption of law is in his favour; he is presumed to be innocent of the charges laid against him, till he is found guilty by a verdict of his country. But I have no hesitation in saying now, in the presence of that man, in the presence of his counsel, and in the presence of this audience, and of your lordships, that if he should be convicted of the crime charged against him in this indictment, I shall say that even fourteen years transportation is too slight a punishment for an offence of such magnitude. My lord, in the case of Margarot I had a doubt, but that doubt was whether fourteen years transportation was not too slight a punishment for the offence, aggravated as it was by a variety of circumstances, and in particular, by the very improper and indecent conduct of that man to the Court in the course of his trial; which, for his own sake, I hope the pannel now at the bar will not do.

Lord Henderland. Your lordships have delivered your opinions so fully, and placed this question in so many different point of view, and expressed yourselves in so much better language than I can do, that it would be highly improper in me to go over the same grounds [Page] again; I shall only say that I perfectly agree in the opinion of the Court, that this objection is not well founded. My lords, it appears to have been a transient conversation, with respect to the crime of sedition, and the punishment due to it: but is that to be the ground of declining a judge? I appeal to he feelings of any man who has conversed upon the subject; I appeal to every juryman who has tried these cases; I appeal to every juryman who will try these cases; would he think himself bound in the smallest degree by such a conversation? would he think the case prejudged one iota? would he think himself hindered from examining the evidence, or from weighing the arguments with the greatest firmness, and with the utmost accuracy? I am sure he would not. To say that these words shall be held by this Court as a prejudication of any judge or juryman (for I know not how far the objection may go) might lead to the most extensive and the most dangerous consequences, for ought I know, I don't say it is so, but it might go even to the exclusion of all trials. My lords, taking it in this point of view, the words said to be expressed in the manner in which they were expressed, and the occasion upon which they were expressed, must all go together; and it is admitted they are so far fairly told you. It is not said that this was a judicial opinion given by this learned judge, and therefore was not any thing like a prejudication of what he might do in this Court; and we are to judge, whether by fair inference it ought to be held so, whether by consulting the common sense of all mankind, for that is the test of all criminality. And here, my lord, a respectable judge, an honour to his profession and abilities, whom I know to be a man of the highest honor and strictest integrity, is to be tried before us; for we are his jury, and we are called upon by our great oaths, as judges, and lying our hands upon our hearts, to say that th [...] respectable judge, by what is here alledged, is no be rendered i [...]pable of sitting in this chair—to be degraded from his office, and held unfit to judge in the most important trials in this country; where his abilities, steadiness, and knowledge in law, are most required—I cannot go such a length—I think it is contrary to law; and that therefore the objection is irrelevant.

The objection was repelled.

(Lord Henderland then left the Chair, and Lord Justice Clerk resumed it.)

Lord Justice Clerk. Joseph Gerrald, attend to the criminal libel that is to be read against you.

(The indictment was then read by the Clerk of the Court, of which the following is a true copy.)

GEORGE, &c. WHEREAS it is humbly meant and complained to US, by our right trusty ROBERT DUNDAS Esq of Arniston, our Advocate for our interest, upon JOSEPH GERRALD, of Hart-street, Bloomsbury Square, London, and, presently or lately, residing in the Black Bull Inn, head of Leith Walk, in the parish of [Page] St. Cuthberts and shi [...] of Edinburgh; THAT, by the laws of this, and all other well governed realms, SEDITION is a crime of an henious nature, and severely punishable: YET TRUE IT IS, AND OF VERITY, That the said Joseph Gerrald, above complained upon, has presumed to commit, and is guilty actor, or art and part, of the foresaid crime; IN SO FAR AS, a number of seditious and ill-disposed persons having illegally assembled, at Edinburgh, during the months of October, November, and December, 1793, the said Joseph Gerrald, above complained upon, did come into this country, for the purpose of joining and assisting these persons, and became a member of their illegal and seditious association and meeting; which illegal and seditious association and meeting, at first assembled under the designation of a "General Convention of the Friends of the People," but thereafter, presumptuously and seditiously, assumed the name of ‘The British Convention of the Delegates of the People, associated to obtain Universal Suffrage and Annual Parliaments;’ and did in the whole form and manner of their procedure, as well as in the principles they avowed and propagated, clearly and unequivocally demonstrate that their purposes were of the most dangerous and destructive tendency, hostile to the peace and happiness, and tending to subvert the constitution of this realm; imitating, in the form and tenor of their proceedings, the Convention of France, the public and avowed enemies of this country, and with whom Great Britain then was, and still is, at war; the members calling each other, at their meetings, by the name of Citizen; dividing themselves into Sections; receiving reports from said Sections; some of which bear date, "Liberty Court." "Liberty Stairs" "Liberty Hall," "First year of the British Convention one and indivisible;" and some of which have Vive la Convention prefixed to them, and end with ca ira; instituting Primary Societies, Provincial Assemblies, and Departments; appointing committees of various kinds, such as, of Organization, of Instructions, of Finance, and of Secrecy; denominating their meetings Sittings; granting honors of Sittings; making honourable mention in their minutes of patriotic donations; and inscribing their minutes, with the first year of the British Convention: AND MOREOVER, the members of the said seditious association, under the designations aforesaid, did, at times and place above mentioned, and particularly, in a room or Masons Lodge in Blackfriar's Wynd, in the city of Edinburgh aforesaid, hold various seditious and illegal meetings, and did in said meetings, wickedly and feloniously, make harangues and speeches, as well as motions and resolutions, of a seditious tendency; the substance of all which was, under their authority, at least with their knowledge and approbation, not only minuted, but published in a newspaper, published at Edinburgh, entitled ‘The Edinburgh Gazetteer,’ and through that medium circulated among the liege-AND the said Joseph Gerrald not only approved of and concurred in these wicked and seditious motions and resolutions, but did [Page] wickedly and feloniously make harangues and speeches, and take an active part in all the illegal proceedings of the said association, was frequently named, and acted as a member of their committees, and as President or Chairman of the association. AND PARTICULARLY, upon Thursday the 21st day of November 1793, or one or other of the days of that month, or of the months aforesaid, the said Joseph Gerrald, did wickedly and feloniously address the said illegal and seditious meeting, when assembled and resolved into a Committee, for the purpose of considering of a Plan of Union, in a speech of the following, or similar import.

Whatever difference of opinion may arise within these walls, I suppose we have all one common object in view: we all live under the same form of government, have the same grievances to complain of, and seek the same redress. It was justly observed by Citizen Callander, That, soon after the union of the crowns of England and Scotland, the people of both countries were deprived of some of their most valuable privileges. It was from that period that the greatest encroachments began to be made on public liberty; but, if that union has operated to rob us of our rights, let it be the object of the present one to regain them. if the event exists for our shame, as it has existed for our chastisement, let it also exist for our instruction.

Some doubts have been introduced respecting our right to universal suffrage. I apprehend that we may justly claim it as our inheritance from nature; but we can with confidence, because we can with truth, appeal to antiquity for our title to this right; and it will be found to have been exercised by our ancestors in its fullest extent. It must be confessed, however, that, in the early periods of our history, there existed a body of men called Slaves: happily, this distinction does not exist in our days; and, if there are political slaves, it is time that they should exist no longer.

In establishing the right of universal suffrage, the Convention may perhaps give offence to the sattelites of despotism; but, while we can establish our demand on the immutable principles of justice, we may at the same time prove, that it is perfectly agreeable to the spirit of our constitution.

Under the Saxon Government, the people met frequently in the different divisions of the country, in assemblies called Folkmotes. There they deliberated; there every man had a voice in choosing his representatives; the concurrence of the people was necessary to the administration of government; and they obeyed the laws which themselves had made. The King of England used to sit in the Folkmote; and, I believe, it would be more to his own advantage if he sat there now.

In the progress of time, however, great deviations have been made from the original purity of the constitution, and the national [Page] representation has been supposed to be sometimes influenced by motives not altogether congenial to the happiness of the people. Human nature is so constituted, that every man is inclined to pursue his own individual interest in preference to that of others. If you appoint a man to act as your agent, and make his situation such that he has every temptation to betray you without incurring the danger of being called to an account, the probability is, that he will sacrifice your interests to his own. It is therefore that a free suffrage of the people is what every man ought to desire, as that alone can make the interest of the representative and his constituent the same. The great art of government, I apprehend, is this, that all should be governed by all; but unhappy is the country where men are called upon by every interest to act in opposition to their duty.

Much, of late has been said about meetings of mobs. I apprehend that no meeting of the people can be called a mob, if their deliberations be directed towards the public good; but if men meet for an opposite purpose, for promoting the misery or the destruction of the human race, though they should sit with crowns on their heads and sceptres in their hands, they are truly a mob.

Were all mankind to assemble in public meetings, one of two things must follow; either they will behave properly or improperly; if properly, their meeting will tend to good; if improperly, it carries its own cure along with it. The people will be soon brought into a better method by a sense of self-preservation, by which they will correct the errors into which they have fallen.

‘It may occur, that the voice of the people may be wrong when their understandings are perverted by priestcraft, or darkened by political superstition, like the voice once heard in Jerusalem, of crucify him! crucify him! when that nefarious deed was perpetrated, at which the sun hid his head in darkness and in blood. But, were the tyrants of the earth as solicitous to enlighten as they are to punish their unfortunate subjects; were governments to instruct the poor, instead of hanging up their bodies on gibbets; the voice of the people would then be the voice of God.’

By the Norman Conquest, or rather Robbery, (for that transaction, like every other, is to be considered by its consequences) the right of voting was greatly curtailed; but surely we can, with great propriety, meet to petition Parliament for the restoration of the right of universal suffrage; a right which is so necessary to the just administration of government; for, if any man comes and tells me that I must pay a tax to which I have never consented, neither by myself nor my representative, What am I think of the legality of his claim? Whenever money is taken from the people by a military power, or by any other authority not delegated by themselves, [Page] call that government what you will, it is a government of force—it is the sword which governs. The right then, of universal suffrage, of which we have been so unfortunately and unjustly deprived, I repeat, is not only a natural right, but an inherent principle of the constitution. In the early periods, every man had a vote for his representative. With some little variation, the practice continued for ages; it underwent considerable alterations at the Conquest; a period at which the goodly fabric of Anglo-Saxon government was undermined, and the structure of tyranny erected in its stead.

It has been observed, that the Revolution of 1688 does not produce the advantages which might have been expected from such an event. It is true, that, at the Revolution, universal suffrage was not dispensed to the people with that liberality which it ought to have been; but still the present form of government, in my opinion, no more resembles the Revolution, than a dead putrid carcase does a living body.

The principal advantage of the Revolution was, that it made the chief magistrate responsible for his trust, by establishing the right of the people to alter the line of succession to the throne. The House of Hanover, if they are wise, will not be averse to revolution principles; for it is in consequence of those principles that the present monarch reigns in Britain. A worthy member, I believe with the best of intentions, called another to order, and said he was going to far:—no man, I apprehend, goes too far, unless he goes beyond the rule of right—unless he violates the truth. If the members who compose a government abuse their trust, May they not be resisted? And, if there existed a right in any preceding generation to amend the constitution, Can it be said that that right does not equally belong to the present?

Let us then endeavour to instruct the people in their rights, and to inform them of our views and our intentions; they will come and sign our petitions, and we shall be enabled to send them up subscribed by a majority of the people. The voice of the people will be heard, whenever it is spoken in the language of truth, and by a number so respectable as to command attention; and it will soon have that respectability, if we have reason on our side.

As to the manner in which the union is to be formed, we may find precedents for it in our early history; but the first thing to be done, is to enlighten the people;—endeavour to diffuse the principle on which you act. When you have got a sufficient number in every district, establish a correspondence among them;— shew them the necessity of uniting in the common plan of co-operation; then the people, assembled in the different departments of the country, will resemble the ancient Folkmotes, and will speak in language too reasonable to be confuted, and too peremptory to be refused.

The manner in which they should organize themselves is of very important consideration; and they ought to be particularly careful [Page] what persons they chuse for delegates to the next convention: let them be plain men, such as I see here;—none who have ever breathed the pestilential air of a court—or bowed the knee to aristocracy. Let us renounce all attachment to parties, and be no more deceived by the pretended patriotism of the great. During the American war, reformers and patriots sprung up like mushrooms, without any diminution of public burdens. Like mushrooms they were short-lived; for they sprung from a soil of dung, a botbed of corruption. Pitt has succeeded to Fox, and Fox to Pitt, without any reform being obtained; but let us no longer put faith in such men, unless they bring forward a reform founded on annual parliaments and universal suffrage:—that only is the kind of reform which will satisfy the people, and which they will never cease to claim as their due. Depend upon it, whenever the leaders of parties see that the people are determined upon having their rights, they will not only endeavour to swim along the stream, but will strive to direct its course. Trust them not—they did not come forward in the hour of public danger;—Why then should they be trusted, when they seek your favour only for personal convenience?

‘The city of York has been proposed as a proper and centrical place for the meeting of next convention; but I can assure you that city is the seat of a proud aristocracy, the seat of an archbishop; however, I would not object to going there; as the Saviour of the world was often found in the company of sinners, let us go there for the same gracious purpose, to convert to repentance. The borders of this country and England were mentioned by another member, and I should rather prefer some place there; for we should have this pleasing reflection, that we meet for promoting philanthropy and peace, on the ground which had often been drenched with the blood of our ancestors. Let us then, fellow citizens, unite heart and hand to bury the hatchet of natural antipathy, which the wicked policy of courts once instigated us to wield. Let us brighten the chain of national friendship. Let there be no other wish, either among Scots or English, than to obtain freedom, and no other rivalship, than who shall best deserve it.’

FURTHER, at a meeting of the said association, upon the 25th day of the said month of November 1793, or on some one or other of the days of that month, or of the months aforesaid, within the room or Mason-lodge aforesaid, Alexander Callender, one of the members, having made a motion of the following or similar tenor, "That in case the minister, or any other member of either House of Parliament, bring forward a motion for leave to bring in a Convention Bill, such as has passed in Ireland, to prevent the people from meeting according to their just rights by the Revolution, the same motion shall be notice to the delegates to meet in convention, to assert their rights;" the said motion was made the subject of discussion in the said meeting, on the 27th day of the said month, or on [Page] one or other of the days of that month, or the months aforesaid, when sundry amendments, of a wicked and seditious tendency were proposed; and the said motion, with the amendments, having been, by the said meeting, referred to some of the members thereof as a committee, to draw up a motion from the whole, Charles Sinclair, one of the members of the said committee, did, upon the 28th day of the said month of November, or on one or other of the days of that month, or of the months aforesaid, read to the said association or meeting, when assembled within the room or Mason-lodge aforesaid, the amendments upon the said motion, as agreed on by him and the committee aforesaid; when the said association or meeting did wickedly and feloniously, then and there, all the members standing on their feet, solemnly and unanimously come to a resolution of the following import or tenor:

"That this convention, considering the calamitous consequences of any act of the legislature which may tend to deprive the whole, or any part of the people, of their undoubted right to meet, either by themselves or by delegation, to discuss any matter relative to their common interest, whether of a public or private nature, and holding the same to be totally inconsistent with the first principles and safety of society, and also subversive of our own and acknowledged constitutional liberties, do hereby declare, before God and the world, that we shall follow the wholesome example of former times, by paying no regard to any act which shall militate against the constitution of our country; and shall continue to assemble, and consider of the best means by which we can accomplish a real representation of the people, and annual election, until compelled to desist by superior force.

And we do resolve,

That the first notice given for the introduction of a Convention Bill, or any bill of a similar tendency to that passed in Ireland, in the last session of their parliament;

Or any bill for the suspension of the Habeas Corpus Act, or the act for preventing wrongous imprisonment, and against undue delays in trials in North Britain;

Or in case of an invasion;

Or the admission of any foreign troops whatsoever into Great Britain or Ireland; all, or any one, of these calamitous circumstances, shall be a signal to the different delegates to repair to such place as the Secret Committee of this convention shall appoint; and the first seven members shall have power to declare the sittings permanent; and twenty-one shall constitute a convention, and proceed to business.

The convention doth therefore resolve, That each delegate, immediately on his return home, do convene his constituents, and explain to them the necessity of electing a delegate, or delegates, and of establishing a fund without delay, against any of these emergencies, for his or their expence; and that they do instruct the said [Page] delegate or delegates, to hold themselves ready to depart at one hour's warn-ing."

Which seditious resolution the said Joseph Gerrald not only approved of, but immediately, on its being so agreed to and passed, did, on the day, and within the place aforesaid, wickedly and feloniously address the said meeting or association, in a speech of the following or similar import.

"I rise to congratulate the convention on the adoption of this resolution, not only on the propriety of the measure itself, but on that unanimity and solemnity with which it has passed.

I have not been able to procure a copy of the iniquitous act which has excited such abhorence; but I have here the heads of the bill in the speech of Mr. Grattan, the man who, while he spoke against the bill, at the same time betrayed the liberties of his country. This bill, commonly called the Convention Bill, which passed in the last session of the Parliament of Ireland, and which is the prototype of what may be attempted in Britain, breathes such a spirit of cruelty and oppression, that if tyranny were to be personified, it could not speak in language more insulting to the feelings of mankind.

By the first head the delegates of the people are not allowed to meet to petition Parliament. Surely despotism could not be more strongly expressed even in Turkey. There every Bashaw listens to the petitions of his trembling slaves; yet that privilege is denied to the people of Ireland. But it has been said, to use a common expression, this bill was first passed in Ireland to feel the pulse of the people of Britain, that our rulers might know if it beat high with indignation, or if the blood run coldly in our veins; and we are willing to bow our necks to the yoke, and suffer in fear and in silence.

In the second head, they are forbidden to meet for the purpose of asking the redress of grievances. Good God! What is government instituted for, if it is not for the redress of grievances? I had thought that in the most despotic government the people were permitted to utter their complaints, and beg to be relieved of their sufferings; but, at the close of the 18th century, we find this last indulgence to slaves denied to a part of the British empire. Our government boasts that it is the best in the world; but it is not in Ireland that we are to look for its excellencies. Whenever a government tells the people that they must not petition, that government is tyranny; and whatever you may be told of its acts of Parliament in favour of liberty, these acts of Parliament are set aside; they are mere pieces of parchment, and of no more value.

The third head makes it a capital offence to consider of any public concern. Now, to make a road, or build a bridge, are public concerns; and of course the people of Ireland cannot meet on business [Page] of that nature, without making themselves liable to the penalty of this law.

Though I could not get a copy of this bill, the heads, which I have read, are sufficiently explanatory of its detestable principles; and I hope the measure which has passed this night will convince the minister, that we are determined to guard against every attempt that may be made to deprive us of our rights; and though by some it may be thought a bold, by some a daring measure, yet it will be found the best for securing the peace of our country: for if such a law were suffered to pass, if men were not allowed to utter their complaints, a number of fierce and rancorous passions world arise, and we would seek to appeal to that last terrible decision, the event of which is uncertain, but which God and nature allows.

If the servility of the people had been less; if they had dared to meet, and, in place of murmuring, to have told their rulers that there was danger in seeking to deprive them of their liberties, we would not have had to adopt this resolution to night; but when I saw the calm deliberate countenances of all present, and the solemn manner in which it was passed, I was convinced that it would not only be a resolution of words, but a rule of action."

AND FURTHER, upon the said 28th day of November, or one or other of the days of that month, or months aforesaid, and within the room or Mason's-lodge aforesaid, after the foresaid resolution had been so passed, and the foresaid speech so made by the said Joseph Gerrald, a motion having been made in the said meeting, in the following words, or in words of a similar import and tendency: ‘That a Secret Committee of three and the Secretary be appointed to determine where such Convention of Emergency shall meet: That such place shall remain a secret with them and with the Secretary of this Convention: And that each delegate shall, at the breaking up of the present session, be entrusted with a sealed letter, containing the name of the place of meeting: This letter shall be delivered unopened to his constituents; the receipt of which shall be acknowledged by a letter to the Secretary, preserved in the same state, until the period shall arrive at which it shall be deemed necessary for the delegates to set out;’ the said meeting did wickedly and seditiously unanimously approve of the same. AND at a subsequent meeting, upon the 4th day of December 1793, or one or other of the days of that month, or months aforesaid, and within the said room or masons-lodge aforesaid, it having been moved by Maurice Margarot one of the members of the said meeting, ‘That the moment of any illegal dispersion of the present Convention, shall be considered as a summons to the delegates to repair to the place of meeting, appointed for the Convention of Emergency, by the secret committee; and that the Secret Committee be instructed to proceed without delay to fix the place of meeting▪’ the said meeting did wickedly and seditously, ‘unanimously resolve the same, and appointed the [Page] Secret Committee to proceed as desired.’ AND FURTHER, on Friday the 6th day of December 1793, or upon one or other of the days of that month, or of the months aforesaid, the said illegal association or meeting having again assembled in a room or workshop belonging to, or possessed by, John Laing, wright, situated in Lady Lawson's Yard, south side of Crosscauseway, in the parish of St. Cuthbert's and shire of Edinburgh, Harry Davidson, Esq Sheriff-substitute of Edinburgh, having, in discharge of his duty, repaired to the said room or work-shop, in order to disperse the said illegal meeting, the said Joseph Gerrald, with his associates, did then and there resist the said Sheriff-substitute, and refused to disperse without being compelled; and so much so, that after the said Sheriff-substitute had entered the room, and desired them to disperse, the said Joseph Gerrald wickedly and feloniously exclaimed, ‘The rights of Britons are violated by this illegal interruption of our peaceful meeting. It is force, not reason, with which our enemies assail us. I defy them to assign one reason against the lawfulness of our meetings; but if they thirst after our blood, they may now gratify themselves; mine I shall see flow with pleasure, if with it flows the freedom of my country.’ AT LEAST, he expressed himself in language of the above import; and did afterwards take the chair as preses of the meeting, and presumptuously did continue to sit and act, until he was, by the said Sheriff-substitute pulled from the chair; which conduct of the said Joseph Gerrald was highly aggravated, from the circumstance that the said illegal association had been, the preceding day, dispersed by the magistrates of Edinburgh, as being illegal; and also, that the said Joseph Gerrald had, the preceding day, been apprehended on a warrant of the said Sheriff-substitute, and ordered to be committed to jail, for being a member of the said illegal association, till liberate in due course of law. And the said Joseph Gerrald, when apprehended and carried before Harry Davidson, Esq Sheriff-substitute of the county of Edinburgh, on the 5th of December 1793, did, in his presence, emit and sign a declaration. And sundry papers having been found in the possession of the said Joseph Gerrald when first apprehended and afterwards inspected in his presence, by authority of the Sheriff of Edinburgh, two lists or inventories of these papers were made up; one of which, consisting of ten articles, subscribed by the said Joseph Gerrald, and William Scott, Procurator-fiscal of the county of Edinburgh; and the other, of nine articles, is subscribed by the said William Scott and the Sheriff-substitute. Which inventories, with the whole articles therein contained, (except No, 1. which had been returned to the said Joseph Gerrald;) as also, the foresaid declaration emitted by him before the Sheriff-substitute of Edinburgh; together with copies of Nos. 78, 79, and 80, of the newspaper called, ‘The Edinburgh Gazetteer;’ as also, the scroll or draught of the Minutes of the said General Convention, from the 29th of October [Page] to the 4th of December 1793, consisting of 95 pages, and found in the custody of William Skirving, Secretary to the said Convention, when apprehended by warrant of the Sheriff of Edinburgh, in the month of December last, being No. 1. of the inventory of papers found in the possession of the said William Skirving, and made up in presence of the Sheriff of Edinburgh, upon the 5th of December last, with the said inventory itself, and the whole of the other papers and writings therein contained; as also, an inventory of sundry papers found in the custody of Charles Sinclair, one of the members of the said Convention, and made up in presence of the Sheriff of Edinburgh, upon the 7th of December 1793, consisting of twenty-one articles, with the whole of the said twenty-one articles themselves, being all to be used in evidene against the said Joseph Gerrald on his trial, will for that purpose, in due time, be lodged with the Clerk of the High Court of Justiciary, before which he is to be tried, that he may have an opportunity of seeing the same. AT LEAST, times and places above-mentioned, the said acts of sedition were committed, and the said Joseph Gerrald is guilty actor, or art and part thereof. 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 seventeenth day of February instant, the said Joseph Gerrald, above complained upon, OUGHT to be punished with the pains of law, to deter others from committing the like crimes in all time coming. OUR WILL IS HEREFORE, &c.

LIST OF WITNESSES*.

1 Harry Davidson, Esq sheriff-substitute, or late sheriff-substitute, of the county of Edinburgh.

2 William Scott, procurator-fiscal of the county of Edinburgh.

3 James Williamson, clerk to the said William Scott.

4 Archibald Welsh, also clerk to the said William Scott.

5 John Dingwall, writer in Edinburgh.

6 Joseph Mack, writer in Edinburgh.

7 James Lyon, messenger in Edinburgh.

8 John M'Donald, residenter in Edinburgh.

9 Neil M'Glashan, residenter in Edinburgh.

10 Alexander Williamson, sheriff-officer in Edin.

11 George Ross, clerk in the Gazetteer Office, Edin.

12 William Ross, clerk in the Gazetteer Office, Edin.

13 Alexander Aitcheson, student of medicine, residing in Canongate of Edin.

[Page]14 Mitchell Young, painter in Edin.

15 John Wardlaw, writer in Edin.

16 John Laing, wright in Nicolson's-street, Edin.

17 John Clark, mason in Edin.

18 William Romanes, merchant, Lawnmarket, Edin.

19 Thomas Cockburn, merchant, Lawnmarket, Edin.

20 Samuel Paterson, merchant in Edin.

21 Alexander Newton, formerly tobacconist in Dunse, now residing in St. Patrick's-square, Edin.

22 Alexander Reid, joiner and cabinet maker, residing in Edin.

23 John Gourlay, watchmaker in Edin.

24 Archibald Binnie, type-founder in Edin.

25 David Downie, goldsmith in Edin.

26 John Buchannan, baker in Canongate of Edin.

27 Alexander Fortune, leather merchant in Canongate of Edin.

28 John M'Intyre, teacher in College-wynd in Edin.

29 The Right Hon. Thomas Elder, lord provost of the city of Edin.

30 Niel M'Vickar, Esq one of the magistrates of Edin.

31 James Laing, one of the deputy city clerks of Edin.

32 John Campbell, residenter in Edin.

33 John Fraser, residenter in Edin.

34 Benjamin Rise, residenter in Edin.

LIST OF ASSIZE.

James Donaldson, bookseller in Edinburgh.

David Ramsay, printer there.

David Deuchar, seal engraver there.

Peter Hill, bookseller there.

5 Alexander Wight, baker there.

Thomas Tibbets, hatter there.

John Bell, bookseller there.

Alexander Pitcairn, insurance-broker there.

David Bridges, merchant there.

10 James Hunter, merchant there.

Hector Gavin, engraver there.

James Cunningham, baker there.

Andrew Milligan, watch-case-maker there.

Sir William Forbes, Bart banker there.

15 Alexander Spence, jeweller there.

Peter Mathie, jeweller there.

John Millar, optician there.

Alexander Gardner, jeweller there.

William Creech, bookseller there.

20 Thomas Hutchinson, merchant there.

Andrew Kay, glazier there.

William Cuming, shoemaker there.

Thomas Kennedy, glover there.

[Page]John Hutchinson, merchant there.

25 James Fyfe, merchant there.

John Sibbald, smith there.

Alexander Nisbet, manufacturer there.

James Collier, merchant in Edinburgh.

John Little, merchant there.

30 Alexander Dudgeon, baker there.

William Ranken, taylor there.

Patrick Main, painter there.

Alexander Smith, baker there.

James Spence, painter there.

35 James Hunter, Baker there.

Alexander Wright, wine-merchant there.

James Craig, architect there.

William Murray, baker there.

Thomas Hunter, grocer there.

40 William Calder, merchant there.

John Sinclair, merchant there.

James Simpson, baker there.

Thomas Malcolm, shoemaker there.

William Crawford, smith there.

45 Archibald Campbell, brewer there.

ROB. M'QUEEN.

ALEX. MURRAY.

DAV. RAE.

Lord Justice Clerk. Joseph Gerrald, what do you say to this? Are you guilty, or not guilty?

Mr. Gerrald. Not guilty, my lord.

Mr. Gilles. My lords, in a case like the present, which has been pleaded by counsel of the very first eminence, and which has already received the solemn consideration of this Court, it is a difficult task for any counsel, and especially for a young counsel, to go over the same grounds again, and that too with the view of directly and strongly maintaining that other views ought to have guided your lordships judgment formerly, and that other views ought to guide it now. Added to this, is that firmly rooted and wide spread notion of the guilt of all those that stand at this bar accused of sedition. The temper of men's minds, from many obvious causes, is such, that they consider a person at this bar under this accusation, as already condemned—that it is almost unnecessary to plead for him, except as going through the forms, while he, whose fortune it is to undertake such a cause, is considered as an effect, a sharer of the crimes imputed to him whom he defends, and by doing his duty, may incur all the consequences that ought only to follow his not doing it.—As to the pannel, thus brought before you, the public eye considers them as the personal enemies of us all.—They do not aim, as we are taught to [Page] think, at the ruin of this or that individual—we have not merely a remote interest in their destruction, but it is absolutely essential to our own personal safety. Our properties, our lives, our all, are represented as the objects of their violence, and against danger so near, and danger so dreadful, we should not be scrupulous about our means of defence. The strongest feelings of our nature, those of self preservation itself, are thus called into instant energy amongst us all. It is difficult in such circumstances to judge right; and the difficulties are altogether on another side from what takes place commonly. In the common case the chief danger is of injustice arising from compassion and mercy. Here the danger is of injustice being done, (unwillingly done yet done effectually) from motives of fear, and of anger against those who have caused that fear. In such a case it behoves us to examine ourselves; to be sure of the grounds upon which we proceed to banish the least appearance of passion; and to renounce a judgment, however deliberately considered, if an after deliberation show it to be even doubtful. It is impossible to deliberate too much.

Knowing well that in these respects your lordships think exactly as I do, and encouraged by this consideration, I shall go on to state, as well as I can, such arguments as have occurred to me in favour of the unfortunate gentleman who stands at your lordships' bar. I hope to shew your lordships that the indictment is altogether irrelevant, at any rate that it is irrelevant to infer that punishment which has been inflicted in the other cases of sedition.

The crime charged, in the major proposition of this indictment, is sedition, in vague and general terms—I know very well that by the laws of this country, explained as they are, and ought to be, by the practice of this Court, the crime in this part of the indictment may be charged in general terms. I know that many crimes are so: in the cases of robbery and murder; for instance, it is not necessary to state these crimes particularly, or to refer to the statutes, which prohibit the commission and affix the punishment due to these offences. But where the law has annexed different degrees of punishment, to different species or degrees of the same offence, then if the crime is charged in general in the major proposition of the indictment, the least culpable species of the offence must be meant, and the lesser punishment only can be inflicted. Thus, in the case of theft, simple theft is not a capital crime, but if aggravated by house-breaking it is punished with death. Now, if theft is charged generally without tins aggravation, the arbitrary punishment due to the offence of simple theft is all that your lordships can award. In the same manner with regard to sedition, I believe it is laid down by every writer of eminence, that there are two species of sedition, verbal, and real— a smaller and greater offence, to which our laws have annexed two different degrees of punishment. The punishment of the first offence, verbal sedition, is fixed by a statute which I shall afterwards mention [Page] particularly; and as sedition is charged generally in this indictment, the lesser offence must be understood. Upon this ground alone, I trust the punishment must be restricted to the lesser species of the crime, for if it was intended to accuse this gentleman of a greater offence, the greater offence ought to have been stated; it cannot, therefore, be construed into any thing more than verbal sedition, or leasing-making, and the lesser degree of punishment can only be inflicted.

I trust from this argument that it must be considered as verbal sedition. It will at least be admitted, that where a crime is charged in general, the degree and species, must be gathered from the particulars charged in the minor proposition. The questions, therefore, now to be submitted to your lordships' consideration are these,

In the first place—Whether the facts stated in the minor proposition, amount to any crime at all—whether they amount to sedition of any kind whatever?

In the next place—Whether, if they are criminal, they amount to verbal or real sedition, and if they amount only to verbal sedition, what is the punishment affixed by our law to that crime?

The first charge in the indictment is, that "the said Joseph Gerrald, above complained upon, has presumed to commit, and is guilty actor, or art and part, of the aforesaid crime, in so far as, a number of seditious and evil disposed persons having illegally assembled at Edinburgh, during the months of October, November, and December, 1793, the said Joseph Gerrald, above complained upon did come into this country, for the purpose of joining and assisting these persons, and became a member of their illegal and seditious association and meeting; which illegal and seditious association and meeting, at first assembled under the designation of a General Convention of the Friends of the People, but thereafter, presumptuously and seditiously, assumed the name of the British Convention of the Delegates of the People, associated to obtain Universal Suffrage and Annual Parliaments."

My lord, the illegality and sedition laid to the charge of the British Convention, must consist either in the meeting itself being illegal, or it must consist in the illegality of the object which they had in view—that is, the obtaining Universal Suffrage and Annual Parliaments, a Reform in the Representation of the Commons House of Parliament.

Setting aside the object of the convention, the first question is, whether such a meeting is or is not legal? whether it is allowed, or, whether it is punishable by the laws of this country? Laying out of consideration the object which they had in view, the question affects every one who hears me; for who is there amongst us who has not been present at some convocation without legal authority? If this is to be punished as sedition, every one present is liable to that punishment. The actions of these men so assembled together, ( [...] shall speak afterwards of their speeches and resolutions, but I say their [Page] actions) were inoffensive and orderly; they are not accused even of the slightest bread of the peace. No doubt that by the ancient statutes of this country, convocations within boroughs were prohibited, but what was the nature of those convocations will appear from the statutes themselves. I shall therefore read the Act 1563. chap. 83. "It is, statute and ordained that nane of our soveraine ladie's lieges presume, pretende or take upon hand to make onie privie conventiones nor assemblies within burgh, put on armour, cleeith themselves with weapons, or make sound of trumpet, or talbrone or use culveringes, displayed banners, hand seingies, or uthers instruments bellical quhat-sumever in onie time hereafter, without the special licence of our said soveraine lady and her hienes' magistrates within the burgh quhair the said tumult and uproar chauncis to be had and obtained thereto, under the paine of death." Sir Geo. Mackenzie, in his observation upon this act, says, "It seems that mere convocations or assemblies are not per se punishable by death, without putting on armour or displaying banners." Thus, in order to bring the British Convention within this enactment, its members must have appeared in armour, and with banners, surrounded with all the pride, pomp, and circumstance of war. The appearance of their meeting was surely very different. Their only armour was their tongues and their pens, and a few blotted and blurred sheets of paper the only banners which they displayed. It is not upon this act then that any proceeding against this convention can be founded. Unarmed convocations were not at this time prohibited by any law whatever, nor were they declared to be illegal until the accession of James VI. It was the wish of that monarch, as your lordships know, to abolish presbytery and to repress the powers of ecclesiastical jurisdiction vested in the presbyterian clergy. The disputes which thus arose betwixt him and the clergy was the occasion of a statute upon this subject. By the act 1584, chap. 131, "It is statute and ordained be our said soveraine lord and his three estaites that nane of his hienes subjects of quhat-sumever qualitie, astaite or function they be of, spiritual or temporal, presume or tak upon hand to convocate, conveene or assemble themselves togidder, for halding of councelles, conventions or assemblies, to treat, consult and terminat in ony matter of estaite civile or ecclesiastical (except in the ordinar judgment) without his majesties special commandement or expresse licence, had and obteined to that effect, under the paines ordained be the lawes and actes of Parliament against sik as unlawfully convocatis the kingis lieges."

After this an act was passed in the same reign, 1606, chap. 17 by which the act of 1584 was confirmed, with an addition that I shall now read to your lordships. "That na person nor persons within burgh, whatsomever rank, quality or condition they be of, presume nor take upon hand from this forth, under whatsomever cullour or pretext, to convocate or assemble themselves together at any occasion, except they make due intimation of the lawful causes of their meetings to the provest and baillies of that burgh, and obtein their licence [Page] thereto, and that na thing be done nor attempted by them in their saids meetings, whilk may tend to the derogation or violation of the actes of parliament, lawes and constitution made for the well and quyetness of the saids burghs. Declaring by thir presents, the saids unlawful meetings and the persons present thereat to be factious and seditious, and all proceedings therein to be null and of nane availl. And the saids persons to be punished in their bodies, goods and geare, with all rigour, conforme to the lawes of this realme."

Your lordships see, that by this act, all persons are prohibited of any rank, quality, or condition, from convocating or assembling themselves together, upon any occasion, except they give due intimation to the provost and magistrates.

My lords, it is no doubt true, that if these acts are still in force, they apply directly to the British Convention; but if these acts are still in force, they apply not merely to the British Convention, but to nine tenths of all the meetings that are held in Edinburgh. These statutes, if enforced, would be attended with effects at once the most serious and ludicrous. We might be conveyed from the rooms in George's Street, or George's Square, to the Tolbooth, from the Tolbooth to your lordship's bar, from your lordship's bar to the hulks at Woolwich, and, from the hulks, to Botany Bay, with a catestrophe very dissimilar from the commencement.

Upon these statutes Sir George Mackenzie says, "this crime of simple convocation is ordinarily pursued before the Council, and is seldom punished, either by the Council or Justice Court, tanquam crimen per se but as the aggravating quality of a riot or other crime." My lords, this was the case before the revolution; that it was never prosecuted but as the aggravating quality of another crime. Since the revolution, I believe there has been no trial whatever for this offence, I apprehend therefore that prosecutions upon these statutes are prohibited by a passage in the claim of rights, which I shall now read to your lordships. In the claim of rights is the following passage: "That the causing pursue and forfeit persons upon stretches of old and obsolete laws, upon frivolous and weak pretences, upon lame and defective probation, as particularly the late Earl of Arguyle, are contrary to law." My lords, if before the revolution the meeting in unarmed convocations was only punished as an aggravating quality of another crime, and since has not been punished at all, we must necessarily conclude that it falls within this enactment in the claim of rights, of obsolete statutes. As an aggravating quality of a crime, it may operate to prevent the mitigation, or to increase the severity of a punishment;—but though it may increase the degree of the crime, it cannot alter the nature of it; it cannot convert verbal sedition into real sedition.

But if any thing further is necessary to shew that no man can now be tried upon these old statutes, it will fully appear from two acts that I am now to mention. The act against conventicles, 1670, ch. 5. has the following preamble. "Forsameikle as the assembling [Page] and convocating of his majesty's subjects, without his majesty's warrand and authority, is a most dangerous and unlawful practice, prohibited and discharged by several laws and acts of Parliament, under high and great pains. And that notwithstanding thereof divers disaffected and seditious persons, under the specious but false pretences of religion, and religious exercises, presume to make, and be present at, conventicles and unwarrantable meetings, and conventions of the subjects, which are the ordinary seminaries of separation and rebellion, tending to the prejudice of the public worship of God in the churches."

Your lordships will observe, that in this preamble, it is positively declared that conventicles fell within these old statutes made against unarmed convocations, previous to this statute. Those conventicles were subject to punishment, as being unarmed convocations of the people, and falling within the statute I formerly read to your lordship, enacted in the reign of James VI. In the reign of William and Mary, this act against religious conventicles, was expressly repealed; but, I say the repeal of that act is of no avail, if these old statutes are still in force. It is of no avail, because men who so meet in conventicles may be punished under the old statutes passed in the reign of James VI. Unless therefore this statute, which was considered at the time as a great attainment to the liberties of the country, it is considered as nugatory, we must understand that all these statutes against unarmed convocations are now obsolete. In consequence of these acts every clergyman, who is not a member of the established church of this country, might be punished for holding unarmed convocations. By the act passed under James VI. against such convocations, the preacher might be carried from the pulpit, and the audience from their seats, to this bar, and punished with DEATH! The act of William and Mary, therefore, is of no avail, if these old statutes against unarmed conventions are still in existence. Indeed, from the absurdity to which they would lead, it must be demonstrable to your lordships that they can be no longer put in force.

Holding, therefore, that the simple act of meeting in convention, as these persons are said to have done, in itself contains nothing criminal. The question that next remains to be considered is, whether criminality is attached to them on account of the professed object which they had in view, the obtaining universal suffrage, and annual parliaments, a reform in the representation of the Commons House of Parliament.

My lords, this is a question of politics on which I have no occasion to deliver my own opinion. All that I have now to enquire is, whether the particular charges, preferred against the pannel in this indictment, amount to the generic crime of which he is accused. The pannel is here said to have been guilty of sedition; because he associated, with a number of others, in order to obtain universal suffrage and annual parliaments. This attempt may in one sense of the word [Page] be termed illegal—inasmuch as it certainly had for its object an alteration of the existing laws of this country. But in this sense of the word, the proposal of every new law may be equally termed illegal. It must therefore be a different species of illegality from this that the public prosecutor annexes to this convention, when he calls it an illegal and seditious meeting: and yet, my lords, if there is any new law or any alteration more than another upon our present laws, in the propriety of which a majority, and a great one too, of every description of the people of this country has concurred, it is in this one thing—of a reform in the representation of parliament.

Men of all ranks and descriptions, from the highest to the lowest, from the most learned, to the worst informed, have it one period or another declared their approbation of this measure. As to the mode or degree in which it should be attempted, different opinions have been held by different men; and this difference as to the mode has hitherto prevented the object itself from being attained.

Upon this point, all the eminent men who at present shine in the councils of our nation have declared their opinions, at one time or another, and almost all of them have acknowledged the necessity of a reform. Mr. Pitt, who enjoys, at present, the favour of the crown, and the confidence of parliament, has given his opinion, not merely in favour of reform, but decidedly in favour of that species of reform which consists in introducing universal suffrage and annual parliaments. Mr. Fox has also declared himself a friend to reform, though not to the same length which Mr. Pitt has gone; and, on this account, the gentleman at the bar has spoken of this great statesman in terms of considerable disapprobation. In the course of a long political life, which might be regarded as unfortunate, if the enjoyment of true glory were not to be preferred to the possession of power, Mr. Fox has all along declared himself an enemy to universal suffrage, and if I am not mistaken, to annual parliaments. Where such great men differ, it is not for us to decide; but surely much blame cannot be imputed to the man whose opinions are sanctioned by either of such authorities. It would be hard, indeed, if this gentleman were to be punished, merely for having adopted the opinions of Mr. Pitt, in preference to those of Mr. Fox—that the same sentiments which have served to place one man at the head of the nation, should expose another to the vengeance of her laws—that they should raise the one person to the height of preferment, to the pinnacle of his ambition, and plunge the other into the deepest abyss of human wretchedness.

My lords, what I am going to read will shew you, that these sentiments have been held by men of the first eminence, in point of rank, in point of (reputed, abilities) of fortune, and of power. The pamphlet, from which I read, was published under the auspices of a society which owed its formation, in a great measure, to the Duke of Richmond and Mr. Pitt; and of which they were long the leading members. The language does not disgrace its authors: "Every application, therefore, for the redress of the present grievances of the [Page] nation, that shall be made to a body of men, no longer under the influence of their constituents, but on the contrary, uniformly acting in subserviency to the views and interests of the crown, must of necessity be unsuccessful; and from the natural effect of disappointment upon the human mind, will probably impair the vigour of every future exertion." In another passage, "that the restoration of the Commons House of Parliament to freedom and independency, by interposition of the great collective body of the nation, is essentially necessary to our existence as a free people." I shall only read one other passage: "An Equal Representation of the people in the great Council of the Nation, annual elections, and the universal right of suffrage, appear so reasonable to the natural feelings of mankind, that no sophistry can elude the force of the arguments which are urged in their favour; and they are rights of so transcendent a nature, that in opposition to the claim of the people to their enjoyment, the longest period of proscription is pleaded in vain. They were substantially enjoyed in the times of the immortal Alfred; they were cherished by the wisest princes of the Norman line; they form the grand palladium of our nation; they ought not to be esteemed the grant of royal favor; nor were they at first extorted by violence from the hand of power. They are the birth right of Englishmen, their best inheritance, which, without the complicated crimes of treason to their country, and injustice to their posterity, they cannot alienate or resign. They form that triple cord of strength, which alone can be relied on, to hold, in times of tempest, the vessel of the state."

My lord, this charge, then, of having wished for universal suffrage and annual parliaments, contains nothing criminal, nothing relevant to infer any punishment at all; and much less the punishment that has been inflicted on the crime of sedition. I am not now maintaining that a reform in parliament is expedient, and still less that annual parliaments and universal suffrage should be the mode of that reform. That mode may be improper—so Mr. Fox thinks it, in opposition to what Mr. Pitt thinks, or at least, most certainly thought; and so your Lordships, in opposition to Mr. Pitt, may also think it. But, if the duration of parliaments has been different at different times, if the elective franchise has also been different at different times, and if our laws have oftentimes varied and altered both, and may in future vary and alter them again; then this is a subject upon which every inhabitant of the country is at liberty to form his own opinion, and take such measures as he thinks proper for promoting those changes of which he approves. In a matter of this kind, open to the deliberation of all, the only question is, whether the measures taken are legal. If illegal measures are employed either to promote or oppose a reform, they are equally punishable in the one case as in the other. My lords, it is here stated, that it was criminal to propose this reform in the convention; and as actions, innocent in themselves, may be made criminal by their relations and accompaniments—so the public prosecutor maintains that this convention gives the tinge of criminality [Page] to the proposed reform, in itself perfectly blameless. But your lordships will attend to where this argument leads. It has been shewn, and I trust will scarcely be denied, that to meet in a convention for innocent purposes is entirely innocent; on the other hand, it has been equally shewn, that it is not criminal to wish for annual parliaments, or universal suffrage; but, says the public prosecutor, it is criminal to wish for universal suffrage in a convention. This is strange arguing—it is innocent to meet in a convention; it is innocent to wish for universal suffrage and annual parliaments; but it is criminal to meet in a convention, and there to wish for universal suffrage and annual parliaments. So that these two actions, perfectly innocent in themselves, when joined together form a crime. It is a common saying, that two blacks cannot make a white; but it seems the converse holds good, that two whites may make a black. It appears that these men have wished for universal suffrage and annual parliaments, and that they have wished for it in a convention; but if it be lawful to meet in a convention, without expressing such a with, and if the wish itself be innocent, it is totally impossible that these two acts, in themselves innocent, can form a crime. As in arithmetick, a thousand cyphers will not make a single unit, so in morals, and in law, a thousand innocent actions can never constitute one crime. I apprehend, therefore, that I have shewn that the great and general charge in this indictment, of having become a member of this association, for the purpose of obtaining universal suffrage and annual parliaments, contains in it nothing illegal whatever.

It now remains to enquire, whether the resolutions, said to have been adopted, and the speeches, said to have been made by the gentleman at your lordships bar, contain in themselves any thing criminal; whether they shew that he had any intention contrary to, or different from the professed objects of the convention, of which he was a member, that professed object being innocent.

The indictment goes on to state, that "in the whole form and manner of their procedure, as well as in the principles they avowed and propagated, clearly and unequivocally demonstrate, that their purposes were of the most dangerous and destructive tendency, hostile to the peace and happiness, and tending to subvert the constitution of this realm; imitating, in the form and tenor of their proceedings, the Convention of France, the public and avowed enemies of this country; and with whom Great Britain then was, and still is, at war. The members calling each other, at their meetings, by the name of citizen, dividing themselves into sections, receiving reports from said sections, some of which bear date, Liberty Court, Liberty Stairs, Liberty Hall, first year of the British Convention, one and indivisible; and some of which have Vive la Convention prefixed, and end with Ca ira; instituting primary societies, provincial assemblies, and departments," and so forth. My lord, as to the words Liberty Court, and Liberty Hall, they surely contain nothing criminal. Liberty, both the word and the thing, has been long known, and I hope long [Page] will be so in this country; there is nothing French in it. As to the French phrases, I admit that they are very foolish; I cannot conceive that a person of the abilities of this gentleman could have made use of them; and I believe it will be proved (if this cause goes to proof) that he had no concern in them. When the old despotism subsisted in France, French phrases were frequently used; but nobody ever supposed that they who have adopted this foolish phraseology had any intention of introducing French despotism into this country. Folly and guilt are very different things. The use of such phrases may expose one to deserve ridicule, but not to punishment.

But where would have been the crime, even if the resolutions of this convention had been written in French altogether? However much we may abhor French principles, we are not now making war upon the French language; such contest would resemble the wars of the Greeks and Trojans; not those recorded by Homer, and which have immortalised the plains of Ilium; but those battles of a later date, commemorated by our own countryman, the Spectator, and which were fought with less bloodshed in the gardens of Oxford. When it was first attempted to introduce the study of Greek into that university, the attempt, as your lordships know, was violently opposed. Graecum est, non potest legi was then the sentence of condemnation pronounced upon a book, and the signal of hostility against all who presumed to read it. The Trojans, however, were defeated; the study of Greek was introduced, and has flourished at Oxford, and no SEDITION has followed it.

My lords, the indictment has been read, and therefore I will not go at length into it. Here is a long speech, said to have been uttered by the gentleman at the bar, which contains a great deal of matter, tending, no doubt, to make all these persons with for annual parliaments and universal suffrage. The conclusion of this speech winds up the whole matter. "Let us then endeavour to instruct the people in our rights, and to inform them of our views and our intentions; they will come and sign our petitions, and we shall be enabled to send them up subscribed by a majority of the people. The voice of the people will be heard wherever it is spoken in the language of truth, and by a number to respectable as to command attention; and it will soon have that respectability, if we have reason on our side." I see that the word command is here put in italics, as if it implied or suggested the least idea that violence or force was intended. The word must be explained by its correlative, the substantive which it governs, attention. It cannot imply that he was to make use of force to gain attention, but to seek for numbers, as convinced of the truth and utility of what he proposed; and if numbers and truth cannot procure attention, what can? The tenor of this paragraph, as I have said, sums up the import of his whole speech, and shews that nothing like force was intended. It expressly states "let us then endeavour to instruct the people in their rights, and to inform them [Page] of our views and our intentions; they will come and sign our PETITIONS." It is not in the form of petition that those persons appear who mean to use violence: it is impossible, therefore, that a word used figuratively can imply that violence was meant, or could possibly be intended.

But if I am rightly informed, considerable stress has been laid in former trials upon this resolution, said to have been come to by the convention. The indictment states, that "the said association, or meeting, did wickedly and feloniously, then and there, all the members standing on their feet, solemnly and unanimously come to a resolution of the following import or tenor, That this convention, considering the calamitous consequences of any act of the legislature may tend to deprive the whole, or any part of the people, of their undoubted right to meet, either by themselves, or by delegation, to discuss any matter relative to their common interest, whether of a public or private nature, and holding the same to be totally inconsistent with the first principles and safety of society, and also subversive of our known and acknowledged constitutional liberties, do hereby declare, before God and the world, that we shall follow the wholesome example of former times by paying no regard to any act which shall militate against the constitution of our country; and shall continue to assemble, and consider of the best means by which we can accomplish a real representation of the people, and annual election, until compelled to desist by superior force." Now what is contained in this resolution? It contains a declaration that they will not yield obedience to an act which has never yet even been proposed in our parliament; and which, I trust, the situation of this country will never be such as to render necessary. What they say is this, they will not yield obedience to an act if it should pass, not to an act of parliament in existence, but an act which exists in potentia only, which is no more law than the most extravagant proposition that can be conceived. If this is criminal, it is a crime of a most anomalous and extraordinary nature. They would not yield obedience to that which, perhaps, never might be a law; this, I say; is a crime of such an anomalous and non-descript nature, that I know not under what term, or what degree of punishment it can fall. But at any rate, certainly the crime of saying that I will not yield obedience to an act, if it should pass, cannot be equivalent to disobeying an act after it has passed. Now to what consequences may this lead? I shall suppose that an act had passed prohibiting conventions; that it had said that no convention was to assemble, to deliberate upon any public subject; and that any persons who might afterwards meet, should be liable to a fine of 20l. and imprisonment for a month. After this law a convention meets, in opposition to the act, they are accordingly dispersed, and the persons guilty are punished according to the penalty stated in the act; but these men who have not disobeyed any act, they having only resolved to disobey such an act if it should be passed, are to be punished with fourteen years transportation to Botany Bay! Such are the consequences that [Page] may follow; the members of this convention are to undergo a punishment beyond all ordinary bounds, for only having declared their intention to disobey an act, not in existence; while those, who in fact should disobey it, might be liable only in a trifling penalty.

My lords, I say again, that it is impossible that any violence could have been here intended, because if they were to disobey this supposed act, how were they to disobey it? They must have met in an unarmed and peaceable convention; for it is by so meeting alone, that they could act in disobedience of such a statute. If they had assembled, or if they or any other persons should be bold enough to assemble now, in an armed convention, they would not disobey a statute similar to that passed in Ireland; they could only disobey that by meeting in a peaceable, quiet, and orderly manner, to deliberate on public affairs. But if they had met violently and armed, it would have been in opposition to statutes that have long existed in this country; and of which the enactments are fully competent to repress all such illegal violence.

My lords, this is taking the resolution in its very worst sense; but take this, which may be considered as the preamble of the resolutions, and let it be explained by the resolutions which follow: the first resolution here is, "that the first notice given for the introduction of a convention-bill, or any bill of a similar tendency to that passed in Ireland, in the last session of their parliament, or any bill for the suspension of the Habeas Corpus Act, or the act for preventing wrongous imprisonment, and against undue delays in trials in North Britain, or in case of an invasion, or the admission of any foreign troops whatever into Great Britain or Ireland; all, or any one of these calamitous circumstances shall be a signal to the different delegates, to repair to such place as the secret committee of this convention shall appoint."

Now, your lordships will observe, when, and on what oocasion they were to meet—they were to meet, not after the statute had passed, but when a bill was introduced for passing it—what could be the object of such meeting? It must be to prevent it passing into a law, and to remonstrate, as they had a right to do, against the passing of it. They meant to petition parliament, supported by such numbers, undoubtedly, as they could procure, to prevent such a bill from becoming the law of the land. The object of their meeting, therefore, was to use their best endeavours, in a constitutional manner, to prevent this bill from being passed into a law; and this resolution clearly proves that they meant to meet when the bill was brought in, not for the purpose of disobeying an act, but to prevent it, by all lawful means, from being made an act binding the subjects of this country to obedience. They were to meet upon the introduction of a convention-bill, or of a bill for the suspension of the Habeas Corpus Act, or of the act for preventing wrongous imprisonment; that is, they were to meet in order to remonstrate, in a constitutional manner, [Page] with parliament against the repeal of those salutary statutes which guard the rights and liberties of us all. Again, in case of an invasion, the folly of the resolution is also stated in the indictment as criminal, that "the first seven members shall have power to declare the sittings permanent, and twenty-one shall constitute a convention, and proceed to business." Instead of any thing criminal here, all is innocence. If twenty-one were to constitute a convention, they could not surely be an armed force to assist the invaders, they could with difficulty even have repelled them. There is also stated in this indictment, a second speech, said to be made by the gentleman at the bar, of which I shall read the conclusion. It is printed in Italic, and therefore, I presume the public prosecutor meant to lay particular stress upon it. "If the servility of the people had been less, if they had dared to meet, and in place of murmuring, to have told their rulers that there was danger in seeking to deprive them of their liberties, we would not have had to adopt this resolution to-night, but when I saw the calm deliberate countenances of all present, and the solemn manner in which it was passed, I was convinced that it would not only be a resolution of words but a rule of action." Now, what is a resolution but a rule of action? My lord, every resolution is, or ought to be, a rule of action, and is intended to be such when it is formed: this, therefore, is a very proper expression to enforce and explain more fully the deliberate nature of the resolution entered into, to meet and endeavour to oppose such a bill from passing into a law, a bill to prevent peaceable and unarmed conventions from meeting in this country.

The indictment goes on to state, that the said meeting came to a resolution, "That a secret committee of three and the secretary be appointed to determine the place where such convention of emergency shall meet. That such place shall remain a secret with them, and with the secretary of this convention, and that each delegate shall, at the breaking up of the present session, be entrusted with a sealed letter, containing the name of the place of meeting. This letter shall be delivered unopened to his constituents, the receipt of which shall be acknowledged by a letter to the secretary, preserved in the same state, until the period shall arrive at which it shall be deemed necessary for the delegate to set out." Here is much secrecy, but nothing else. And secrecy was necessary if peaceable conventions were to be prohibited. But an armed force cannot meet in secrecy, unless we are to suppose that the members of this convention were to assemble like the troops of Mr. Bayes in disguise. The secrecy which they here observe is the surest proof of their innocence and peaceable intentions.

My lord, in going through the whole of this indictment, I can perceive nothing relevant in it to infer the crime of sedition, or any other crime. The meeting itself was innocent, the object they had in view was innocent, and the speeches and resolutions said to have been made are also innocent; insomuch as they were merely [Page] calculated to promote the avowed object of the convention. They wished for the support of numbers; but for what? To petition parliament. They were anxious that a bill should not be brought into parliament to prevent peaceable assemblies from meeting; and therefore they say they will prevent such bill, as far as they can, from passing into a law. This also was necessary for the attainment of their object. All that can be said against them, therefore, amounts to this, that they took the best measures they could for accomplishing their purpose of obtaining a parliamentary reform; a purpose legal in itself, and which, on all hands, is admitted to be, in a certain degree, necessary.

At all events, I humbly apprehend, that the facts stated in this indictment can only amount to verbal sedition—that there has been in this case, no commotion, no rising of the people, and that speeches uttered, or resolutions formed, can only amount to verbal sedition, or leasing-making.

In order to shew this, I must trouble your lordships with reading the definitions given of sedition by our law writers, comparing them with the charges set forth in the indictment, and also with the statutes respecting verbal sedition.

The first is Sir George Mackenzie, book 1, title 7, who says, "Sedition is a commotion of the people, without authority; and if it be such as tends to the disturbing of the government, ad exitium principis vel senatorum ejus & mutationem reipublicae, it is treason; but if it only be raised upon any private account, it is not properly called treason, but it is, with us, called a convocation of the lieges."

Sedition, therefore, is a commotion of the people, or a rising of the people, without authority, according to the definition given of it by this great lawyer.

A similar definition is given by Forbes, book 3, title 2, sect. 1, "Sedition is a commotion or rising of the people without authority, in order to do any thing tending to a disturbance of the public peace, though the design be not executed, which is raised upon a public or private account."

According to Erskine, the crime consists in raising comm [...]ns or disturbances in the state.

I believe a definition more full and more accurate is given of this crime by Dr. Boyd, in his Justice of Peace, in book 1, title 5, "Sedition is any commotion or rising of the people, without lawful authority, and which tends to the disturbance of the public peace of the kingdom."

My lord, every one of these definitions represent sedition, not as consisting in peaceable convocations, or in the speeches and resolutions of such convocations, but as consisting in commotions of risings of the people.

Accordingly there is a most material distinction to be made between commotions and risings and speeches and resolutions tending to [Page] excite commotions and risings. These speeches are termed seditious, but the expression is figurative: they are seditious merely on account of their tendency to excite commotions and risings of the people, which is really sedition; and this distinction is expressly pointed out by several of our statutes.

A man who makes speeches and resolutions, the tendency of which is to excite commotions, is guilty of verbal sedition, but is not guilty of that crime which he has failed to commit; he is not guilty of those commotions which his seditious speeches tended ineffectually to produce. If a person excites another to murder, and the deed is not perpetrated, he is not an accessary to the murder; he may be punished undoubtedly by the laws of this country, but he is not guilty of that murder which he instigated, but which he instigated in vain. In the same manner, these people may be guilty of having endeavoured to excite disturbances, but they cannot be punished as guilty of those commotions which have not existed. This important distinction is fully recognized in several of our acts of parliament. In the acts 1555, chap. 60, in the reign of Queen Mary:

‘For-sa-meikle as diverse seditious persones hes, in times by-past, raised amaungst the commoun people, murmures and sclanders, speaking against the queenis grace, and sawing evil brute anent the maist Christian King of France, his subjectes sent in this realme for the commoun weill, and suppressing of the auld enemies foorth of the samin, tending throw raising of sik rumours to steir the heartes of the subjectes to hatrent against the prince, and sedition betuixt the lieges of this realme and the maist Christian kingis lieges foresaidis: and, for eschewing of sik inconvenientes as micht follow thereupon: it is devised, statute and ordained, that gif onie persones in times cumming, bee hearde speakand sik unreasonable commoning, quhair-throw the people may take occasion of sik prievie conspiracie against the prince, or sedition against the maist Christian kingis subjectes foresaidis, the samin, being proven, fall bee punished according to the qualitie of the faulte, in their bodies and gudes, at the [...]enis grace pleasure: And, in case the hearer thereof report not the samin unto the queenis grace or her officiares, to the effect that the samin may bee punished, as accordis, that he fall incurre the saidis paines, quhiikis the principal speaker or raiser of sik murmures deservis.’ In no less than two places this is pointed out, 'tending throw raising sik murmures,' to excite sedition, and again, ‘quhair-throw the people may take occasion of sik prievie conspiracie.’

Lord Justice Clerk. What is the punishment?

Mr. Gillies. In their bodies and goods at the queen's grace pleasure. The next is the act 1584, chap. 134; this act points out still more clearly the distinction I just now stated:

‘For-sa-meikle as it is understand to our soveraine lord and [Page] his three estates, assembled in this present parliament quhat great harme and inconveniente hes fallen in this realme, chiefly sen the beginning of the civile troubles occurred in the time of his heines minoritie, throw the wicked and licentious publick and private speaches, and untrew calumnies of divers his subjectes, to the disdaine, contempt and reproch of his majesty, his councel and proceedings, and to the dishonor and prejudice of his heines, his parents, progenitours and estate; steirring up his heines subjectes theirby to misliking, sedition, unquietnes, and to cast off their dew obedience to his majestie to their evident perrel, tinsel, and destruction, his heines continuing alwaies in love and clemencie, toward all his gude subjectes, and maist willing to seek the safetie and preservation of them all, quhilkis wilfully needles, and upon plaine malice, after his heines mercy and pardon, oft times afoir granted hes procured themselves be their treasonable deeds to be cut off as corrupt members of this common weill: Therefore, it is statute and ordained bee our sovereign lord, and his three estaites, in this present parliament, that nane of his subjectes (of quhat-sumever function, degree, or qualitie, in time cumming) fall presume, or take upon hand privatly or publickly, in sermones, declamationes, or familiar conferences, to utter ony false, slanderous, or untrew speeches, to the disdaine, reproche, and contempt of his majestie, his councel, and proceedings, or to the dishonor, hurt, or prejudice of his heines, his parents, and progenitours, or to meddle in the affaires of his heines▪ and his estate present, by-gane and in time cumming, under the peines conteined in the actes of parliament, against makers and tellers of leesinges: Certifieing them that fall be tried contraveners theirof, or that hearis sik slanderous speaches, and reportes not the same with diligence, the said paine fall be executed against them with all rigour, in exemple of utheris.’

In consequence of the union of the two crowns, in the reign of James VI. another act passed, to prevent national differences between the Scotch and English, from being excited by speeches and harangue, 1609, chap. 9. The preamble of the act shows that it was historically such as I have stated to your lordship. ‘For remeed and preventing whereof, his majestie remembring how strait and sever punishment, hes by the laws and actes of his maist royall progenitors, kings of this realme heretofore, bene ordered to be inflicted upon sik as should devise or utter false and slanderous speeches and writtes, to make dissentions between the prince and his subjects, or raise sedition in the realme, and considering that all sik purposes and writtes, as may breed dislyking betwene the inhabitants of the said kingdomes of Scotland and England, being now all become his majesties liege people, equallie subject and equallie beloved of heighnes, tenas to maist dangerous dissention and sedition amangs his subjects; [Page] therefore, his majestie, with advyce and consent of the haill estaites of this parliament, statutes and ordeines, that whatsoever shall hereafter, by word or write, devise, utter, or publish, any false, slanderous, or reprochful speeches or writtes, of the estate, people, or countrie of England or of any counseller thereof, tending to the remembrance of the auncient grudge borne in tyme of by-past troubles (the occasion whereof is now happilie abolished by the blessed conjunction of the saids kingdomes, under his majesties soveraignitie and obedience) or to the hinderance of the wished accomplishment of the perfect union of the saids kingdomes, or to the slander or reproch of the estate, people, or countrie of England, or dishonor, or prejudice of any counseller of the said kingdome whereby hatred may be fostred and entertained, or mislyking raised betwene his majesties faithful subjects of this isle. The authors of sik seditious, slanderous, and injurious speeches or writtes, or dispersers thereof, after tryell taken of their offence, either before his majesties justice, or the lords of his hienes privie counsel, shall be severelie punished in their persones and gudes, by imprisonment, banishment, fyning or mait rigorous corporall paine.’

These are the statutes that point out, as I said before, and fully recognize the evident distinction that exists between commotions and risings of the people, and speeches or writings, tending to excite those commotions. Your lordships will also observe, that the crime stated in the act 1606 consists in endeavouring to excite disturbances, by sermons, declamations, or familiar conferences. Now, the declamations here mentioned, as distinct from sermons, upon the one hand, or familiar conferences on the other, must be precisely the same as the speech said to have been made by this gentleman, or the resolutions of the other members of the convention. It cannot be supposed that persons would declaim in the fields where there were none to hear them. Their declamations must have been addressed to an assembly of the people, met together, like this convention, in a room; or which would have been still more criminal, and of still more dangerous tendency, they must have been addressed to any accidental assemblage of people upon the public streets.

But it is charged against this convention, that their object, though professed to be a reform in the representation of the Commons House of Parliament, was really to overturn the government, and subvert the constitution of this country; and, it has been said, that the tendency of these speeches, joined to the intention with which they were uttered, converts this crime from verbal, into real sedition; that this circumstance takes it out of the case of leasing-making, where speeches are uttered, not with the evil intention that is ascribed to these persons, of subverting the constitution of the country, and changes it into real sedition, a crime of a different nature, and of a blacker dye.

[Page]My lords, if those persons formed a plan, and entered into a resolution, of overturning this constitution, and if that resolution is indicated by their actions, they are not guilty of sedition, but of high treason; and for that crime let them be indicted. I say again, if they formed this intention to overturn the government of this country, and if this intention appears from their proceedings, they ought not to have been tried on an indictment such as this, but on a charge of high treason itself; a crime for which no punishment your lordships can here inflict is at all adequate. In the proceedings of the convention itself there is no proof of any such design. If such an intention was proved from their proceedings, the crime would be treason. The consequences are obvious. If the intention is not proved, the public prosecutor is not intitled to presume it, and arguing upon that presumption, to accuse this gentleman of a greater crime than what arises from his speeches, according to their plain and direct meaning. The intention of subverting the government is not here indicated in the way that the laws of treason require; that is, there is no sufficient proof of it, not even a vestige of evidence that could enable the public prosecutor to bring my client to trial for high treason. Did there exist any such proof, then the public prosecutor has neglected his duty, in not bringing an indictment for this crime. He cannot be permitted to say, that the proof of high treason being defective, he was obliged to charge for another offence, which very offence was to be aggravated by the treasonable intention he could not prove: the want of proof of one crime is not the proof of another crime. This would be to overturn all judicial procedure, to subvert every notion of jurisprudence. The members of this convention have formed that intention which is ascribed to them, of overturning the government of this country, or they have not. Their having formed it, is proved, or it is not proved. If it is proved, they are guilty of high treason. If it is not proved, this criminal intention must be laid out of consideration altogether, and cannot be permitted to aggravate the degree, much less to alter the nature of the offence charged in the indictment. The deficiency of proof of one crime can never give rise to a new, or a different crime; if I am accused of murder, and if evidence of the fact, that I committed the homicide is wanting, will that ever constitute a charge of manslaughter? I say that the deficient proof of a greater crime can never constitute a lesser crime—let the lesser crime be charged and punished as such, or let the greater crime be charged and punished as such. If it was the intention of the members of this convention to overturn the government of this country, they are guilty of treason.—If it was not their intention it ought not to be charged; and they are guilty of no crime at all.

Whether this gentleman at the bar has ever formed such intention is known to his own breast. Whether he has ever formed [Page] such intention is ever known to that Being, and to that Being alone, who can search the hearts of men, and without aid of external circumstances, pronounce upon the secret motives of their conduct. But no human judge can assume this prerogative,—can presume guilt from constructions put upon speeches; constructions which may be different by different persons, and at different times; no man can lay his hand upon his heart, and upon constructions of this sort say, that this gentleman has formed any such intention. Even, whatever may be his own opinion, he is not entitled to act, upon that opinion here; as no legal proof of any sort has been brought, and no constructive proof of treason is known to our laws. I am speaking here as if the strange and illegal practices could be permitted, of bringing forward a higher crime, not to be punished itself, but as the aggravation of an inferior offence. Even in such preposterous proceedings, could this practice be countenanced for a moment, there is, in the present case, no evidence on which such aggravation could be placed.

My lords, the whole actions and proceedings of this convention may fairly, and with probability, and so far as it strikes my mind, can only be ascribed to their wishes to attain the proposed object which they had in view, a reform in the House of Gommons, by the introduction of universal suffrage and annual parliaments. They may also have proceeded from the treasonable intention ascribed to them. But where these matters are doubtful, where the writings and resolutions of men may be ascribed either to bad or good motives, humanity and justice both require that they should be ascribed to motives that are good. When these resolutions express an avowed purpose, and when these men declare, in all their speeches and motions, that they wished not to subvert, but to reform the constitution, will you say from those very speeches and resolutions, that this was not their purpose? Are you, from speeches containing declarations that they wished for reform, to conclude that they did not wish for reform? Are you from speeches containing declarations that they wished to support the constitution, to conclude that they wished to subvert it? This is straining constructive evidence to a great length indeed. Those are questions upon which men, in their closets, and in private life, may entertain different opinions; but your lordships know, much better than I do, what the strictness of judicial evidence requires. We cannot receive in evidence those things which in private life may convince us of the truth or probability of any fact. I say now, therefore, as I said before, that could the proof of such intention be adm [...]ted, as aggravating the lesser offence charged, still there is no [...]roof of the aggravation.

My lord, it may be stated that the circumstances of the times in another country, may afford a proof of the intentions of these men. Upon this it does not become me to speak in this place; but, with regard to the French Revolution, I shall only say, that two views [Page] may be taken of it in as far as it respects England—Those scenes of bloodshed that have been exhibited there, may shew us the danger of innovation on the one hand; but the very same circumstances may shew us, on the other hand, the propriety of adopting a timely and moderate reform. A delay of reformation, may, as many think, have produced those transactions which we all in common deplore. Some men may be impressed with this event, so as to stifle all desire of reformation. To others, with equally virtuous views, it may appear that this very revolution is an additional argument for obtaining a moderate and timely reform in the representation—Here again the case comes to be the same as before. Who is entitled to search into this man's breast? He, perhaps, can lay his hand upon his bosom and say, that he viewed the French Revolution, as holding out to as a warning not to be too dilatory in obtaining a moderate reform, before the people are stirred up to those excesses which have been committed in France.

The circumstances of the times then which are brought forward to aggravate the offences of these men, may in their own breasts form their justification; because they may consider the French Revolution as evincing the necessity and propriety of adopting a moderate and timely reform. Here then I apprehend that no stress can be laid upon circumstances which operate in two ways; which in one view, may operate to criminate this gentleman, and in another view, may be the very proofs of his innocence and virtue.

My lord, setting aside this intention of overturning the constitution, no vestige of a crime remains. Even with this intention, since there has been no commotion, no rising of the people, and since words spoken, whatever may be their purport, can never constitute real sedition, still the only offence is verbal sedition. This has not been a frequent crime; but it is a crime not altogether unknown to our laws. In the records of this Court there are two instances of trials for leasing-making or verbal sedition, upon a statute which I shall hereafter have occasion to notice; the act 1703. The offences which were in those cases charged against the pannels, I apprehend to have been at least as criminal as those which are laid to the charge of this gentleman.

On February 1st, 1715, John Gratham and others were indicted for leasing-making and slanderous speeches, tending to excite sedition, and alienate the affections of his majesty's subjects from his person and government, by setting up the false pretensions of another. The corpus delicti was drinking the pretender's health at the Tron Church, by the name of James VIII. and his happy restoration. This was a crime which was then thought to amount to leasing-making, and accordingly it was tried upon that statute.

Upon the 27th June, in the same year, John Oliphant, Alexander Wilson, William Ramsey, bailies of Dundee, William Lyon, of Ogle, treasurer, and J. Watson, vintner, were indicted upon the [Page] same statute, and the same offence of leasing-making, inasmuch as for abetting the pretender's right, they did go upon the 10th of June, (the pretender's birth-day) to the cross of Dundee, and, in a solemn manner, drank his health, by the title of King James, VIII. king of those realms; and on the 20th, of June 1715, a thanksgiving appointed by parliament for the king's accession, when the bells were ringing, they went up and prevented their ringing, and cursed the king.

I shall leave it to your lordship to decide, whether the crimes of which these men were convicted be not far more atrocious than the offences charged against this gentleman; and at a time too when rebellion raged in this country:—at that very time they were thought to amount to leasing-making or verbal sedition only.

My lord, I now come to enquire as to the punishment to be inflicted. Punishments upon the old acts are prohibited by a passage in the Claim of Rights, which I formerly read, and shall now read again to your lordships. Having particularly in their view this provision in the Bill of Rights, the Legislature passed the act 1703 chap. 4. (Reads.) "Our soveraine ladie considering that by the acts of parliament following," reciting a number of acts, "the crimes therein mentioned are made capital, and punishable by death and confiscation, and that the saids laws have been liable to streatches, and that in respect of their generality, and the various construction which the same may admit, they may be, as to the foresaid capital punishment, of dangerous consequence, Doth therefore, with advice and consent of the Estates of Parliament, abrogate and discharge, in all time coming, the foresaid sanction and pain of death and confiscation, contained in the said acts; and statutes and ordains, that the punishment of the crimes mentioned shall, for hereafter, only be arbitrary, according to the demerit of the transgression; that is, by sining, imprisonment, or banishment; or if the party offender be poor, and not able to pay a fine, then to be punished in his body (life and limb always preserved.")

My lord, one of the acts repealed by this statute is the act of 1584, chap. 134, where the offence was, as I formerly stated, directly the same as that charged here, that is, declaiming in public against the government of the country. I need not again repeat that declamations cannot be uttered in a desert, where nobody can hear them, or in a private room, to a private company; they must be addressed either to such an assembly as this convention, or to the world at large, in the streets, which would have been still more dangerous; and therefore, this act being one of those repealed by the statute of 1703, the punishment of this last statute can only be inflicted upon the crime.

The question comes then to be what is the punishment enacted by this statute, under the word banishment. With regard to transportation, your lordships know this was a punishment altogether unknown in this country till the reign of Charles II. It was [Page] then introduced by the Privy Council, in imitation of what had been done in England, for the purpose of repressing the religious sectaries.

Upon this subject the authority of Sir George Mackenzie seems to be decisive: "But with us no judge can confine a man whom banisheth to any place without his jurisdiction; because he hath no jurisdiction over other countries, and so cannot make any acts, nor pronounce any sentences relative to them." Again, in another place he says, "As to the sending away people to the plantations. It is answered, That none were sent away but such as were taken at Bothwel Bridge, or in Argyle's Rebellion; and the turning capital punishment into exile, was an act of clemency, not of cruelry." If transportation had been a punishment at common law, I apprehend, Sir George Mackenzie must have been too well acquainted with that law to think an apology for government necessary. The apology which he makes is, that these men had committed a capital offence, and therefore, says he, the turning capital punishment into exile, was an act of clemency and mercy, as otherwise they might have been punished by death. I therefore apprehend, that the punishment of transportation could only be inflicted in the case, that Sir George Mackenzie states, or where it is expressly pointed out by statutes, or in cases where the punishment is altogether discretionary, which it is not under the act 1703.

The Roman law has, as your lordships know, made a material distinction between banishment and transportation. Under a law authorizing the punishment of regulatio merely, the more severe punishment of deportatio in insulam could not have been inflicted.

In judging of a matter of this kind, where a statute has expressly declared, that the punishment of these offences is to be banishment, the first thing to be done is to enquire into the common signification of the word 'banishment.' My lord, this is not a legal or a technical phrase: the whole world are bound to understand it; and it ought not so much to be referred to law-writers as to commnon-sense, and the etymology of the English language. It is a question of philology, rather than of law; and holding it to be such, I refer to the authothority of Dr. Johnson. He gives the following explanation: 'To banish, to condemn to leave one's own country;' not a word of sending to another country. The examples given are the words addressed by Macduff to Malcolm:

"O fare thee well!

Those evils thou repeat'st, upon thyself,

Have banished me from Scotland."

Another signification of the word is 'to drive away:'

Banish business, banish sorrow,

To the gods belongs to-morrow.'

If your lordships could banish business, and banish sorrow along with it to Botany Bay, we should all be much obliged to you.

My lord, with regard to the statute 1703, chap. 4, I apprehend, [Page] that by the recital of the acts therein given, there is demonstrative evidence afforded of the meaning of the word banishment. The statute 1609, chap. 9, which is quoted and its penalty partly repealed by the act of Queen Anne, 1703, declares that the persons convicted under it 'shall be severely punished in their persons and goods, by imprisonment, banishment, fining, or more rigorous corporal pain.' At the time this statute was passed, in 1609, it cannot be maintained, and is not pretended, that transportation was known in this country, because this country had then no jurisdiction beyond itself. If banishment, therefore, in the act 1703, signifies transportation, it must be made use of at once, in two different and contradictory senses. In the act: 609, banishment merely means, and can only mean, exile from Scotland. In the other acts recited in the repealing statute 1703, banishment, according to the public prosecutor, means transportation, that is, imprisonment in some foreign country, attended with every thing that is ignominious and painful. The term banishment, thus, in the act 1703, means, by this construction both or either of these punishments, altogether different in themselves, and of which we know certainly, that the one was not meant in one of the statutes repealed, and no evidence is brought that it was meant in any of the others. Such a construction is insufferable. The word banishment must be understood in one simple sense; and that is the sense in which it is employed in the act 1609.

Were it otherwise, the consequences are as absurd as they are dreadful. If the word banishment cannot be employed in two senses in the accurate language of a repealing statute, and if its simple sense be not exile from Scotland, but transportation, then the act, intended, and bearing, to be a mitigation of punishment, would increase, and in an enormous degree, the severity of punishment. The act 1609, repealed for its severity, is rendered still more severe. Transportation comes in place of banishment; and thus the Legislature, who in passing the statute of 1703, intended it as an act of mercy, have in reality committed an act of cruelty; instead of lessening, they have increased the severity of the punishment which then existed.

My lord, it has been said, that to sentence these men merely to exile from Scotland, would be preposterous, as it would not be an adequate punishment, and because it would leave them opportunities of committing the same offences in England. But if this is a preposterous penalty, I am sure the same preposterous thing is committed twenty times every year by your lordships; for how often is it that you banish thieves and pickpockets forth of Scotland, leaving them at liberty to go to England, where, as people's pockets are generally better filled than they are here, persons of this description will be enabled to exercise their profession with much greater advantage and success? But, my lords, a punishment so well known, in our own law, and in the laws of every country, as banishment, can never be called preposterous.

I stated two trials in the beginning of the present century: John [Page] Graham was indicted for "leasing-making, and the utterance of slanderous speeches, tending to excite sedition, and alienate the affections of his majesty's subjects from his person and government; setting up the false and scandalous pretensions of another, by drinking the pretender's health, at the Tron Church, by the name of James VIII. and his happy restoration." My lord, there were other persons concerned in this crime besides him; the verdict was, "the crime not proven against Graham and Hay, but found proven against Crawford, upon his own confession:" the sentence was, "that he be amerciated in a fine of 50 l. sterling, and imprisoned till security found for payment."

My lords, in the other case of "John Oliphant, Alexander Wilson, and William Ramsay, bailies of Dundee, William Lyon, of Ogle, treasurer, J. Watson, vintner, indicted on the statute of Anne, and the acts contained in it, of leasing-making, &c. inasmuch as for abetting the pretender's right, they did go on the 10th of June, the pretender's birthday, to the cross of Dundee, and in a solemn manner, drink his health, by the title of King James VIII. king of these realms; and on the 20th of June 1715, a thanksgiving appointed by parliament for the king's accession, when the bells were ringing, Oliphant went up to the steeple, and prevented their ringing, and cursed the king."

11th July, 1715.

"The Lords Justice Clerk, and Commissioners of Justiciary, having considered the verdict of assize, returned on the 5th of July instant, against the said John Oliphant, &c. pannels, they, in respect thereof, by the mouth of Charles Kinross, Macer of Court, deprive the said John Oliphant, &c. of their offices of bailies of Dundee, and the said William Lyon, of his office of treasurer of the said burgh, and declare the said John Oliphant incapable of enjoying any public office or trust within the said burgh, or within that part of Great Britain called Scotland, in all time coming, and declare the said Alexander Watson, and Mr. Thomas Wilson, incapable of enjoying any public office or trust, in the said burgh of Dundee, in all time coming, and also, declare the said Mr. William Ramsay and Mr. William Lyon, incapable of enjoying any public office or trust, within the said burgh, for the space of three years next▪ after the date hereof; And sick-like, the said lords fine and amerciate the said John Oliphant, in the sum of two hundred merks Scots, and the said Alexander Watson in the sum of 100 l. Scots, and the said Mr. Thomas Wilson, in the sum of one hundred merks Scots money, foresaid, to be paid to his majesty's Receiver General for his highness use: And ordain, the said John Oliphant, Alexander Watson, and Mr. William Ramsay, William Lyon, and Mr. Thomas Wilson, to be carried to the Tolbooth of Edinburgh, there to remain until the 10th of August next, inclusive: And the said John Oliphant, Alexander Watson, and Mr. Thomas Wilson, to remain thereafter in the said prison, until they make payment of their said respective fines: And ordain, the ma [...] strates [Page] of Edinburgh, to set the persons of the said Mr. William Ramsay, William Lyon, at liberty, furth of the said Tolbooth, after the said day: And also, to set the persons of the other three pannels at liberty, after elapsing of the said day, upon producing their respective discharges of the said fines, which is pronounced for doom."

In these cases your lordships will observe, that an enormous offence had been commmitted against the government; and you have heard th [...] [...]ishment that was inflicted: whether it was, or was not equivalent to the offence, I leave entirely to your impartial consideration. But my lord, certainly the circumstances of the times then were at least as dangerous as the present. Actual rebellion followed, and many unfortunate men fell in the contest. If any circumstances could justify the extreme severity of a sentence they were those which then existed. But all that it was thought necessary to do then was, to inflict the small punishment which your lordships have heard. I may also notice, that in the last of these cases, the pannels had been convicted of two offences, leasing-making, and a malversation in office as magistrates. Being thus guilty of two crimes, the accumulated punishments of fining, deprivation and imprisonment were inflicted upon them.—

Having said so much, I shall now conclude. Before sitting down I must yet mention one consideration personal to this unfortunate gentleman himself. His state of health is feeble, and in regard even to this there ought to be some measure of the punishment. Should he reach his place of exile, his punishment will indeed be severe. A man of high talents, of a cultivated understanding, is to be condemned to the communion of thieves and villains, the refuse and dregs of the human race! In such society he is to be sent to the desolate shores of the remote southern ocean. From those hapless regions it may, perhaps, be possible to return; but from his state of health it is highly probable that this gentleman will never even arrive at his miserable destination. His sentence of exile will have been to that 'undiscovered country, from whose bourn no traveller returns.'

I know that the humanity of your lordships will make you pause before you pronounce a judgment of which such must be the consequences.

Lord Justice Clerk. Mr. Gillies, you have done ample justice to your client, you have managed his defence in a very able manner.

Mr. Montgomery. My lord, after the very able and full discussion which this question underwent a fortnight ago, not only by your lordships, but by the counsel on both sides, I should consider myself much to blame, were I to consume a great deal of your lordship's time, by entering at large again into the field of argument then stated, because I feel myself incapable of giving any additional illustration or adding weight to the argument then so ably stated by the Solicitor General.

My lords, the counsel for the pannel has endeavoured to maintain before your lordships a variety of propositions, all of which it is incumbent [Page] upon him to make out before his client can derive any benefit from them. The first was, that this libel was too general, that it includes verbal sedition, and that therefore such a general indictment ought not to be found relevant to the knowledge of an assize. It is very true, both verbal and real sedition are known to the laws of this country; but it is not from the major proposition alone that he is to learn which is meant to be charged; but he is to look to the minor proposition, and if there is such a thing existing in the law of this country as real sedition he will there find it.

His next proposition is, that if this indictment is not on account of its generality to be laid aside entirely, it must be presumed that simple sedition, or leasing-making, only is the crime laid, and that your lordship in the interlocutor would so find it; and he instanced the case by an example which I should have taken to prove the contrary; for it is very well known, that, for the crime of theft, either a capital or an arbitrary punishment may be inflicted. The usual mode of laying indictments is the same, that the crime is of a heinous nature, and severely punishable; and from the minor proposition you are to learn whether it is such a crime as will infer an arbitrary or a capital punishment.

My lords, he has stated three different propositions: In the first place, that there is nothing criminal set forth in the indictment, and that therefore it ought to be dismissed entirely, because it contains nothing upon which punishment can be inflicted. In the second place, that if there is any thing criminal, it can only amount to leasing-making, which infers a smaller punishment, and not to real sedition, which infers a greater punishment.

And the object of both these propositions was to make way for the last and main object, namely, to shew that under the term banishment in the act 1703, exile from Scotland, only, and not transportation was intended.

My lord, with regard to the first that there is noting criminal charged in the libel, I should think it an indignity offered to your lordships and to the jurors who tried the former cases, and found those persons guilty, to take up much time in proving that it contains matter highly criminal and deserving of very great punishment. Mr. Gilles asked if there was any thing wicked, if there was any thing seditious, or if there was any thing criminal in using the words ça ira, or in using French terms in this convention, unless the object of their meeting was criminal.

My lord, in order to judge of the criminality of this libel, I apprehend we should lay the whole of the facts together, and I will appeal to the understanding of every man, whether he can figure to himself a more flagitious crime than that charged against the pannel, namely, joining a conspiracy against the government of this country, which they have endeavoured to promote to the utmost of their power using French terms vive la convention, ça ira, Liberty Hall, Liberty [Page] Stairs, and so on, as general circumstances, go to prove that the pannel at the bar, with other persons, have met for the detestable purpose of overturning the constitution.

My lord, my brother has endeavoured to take off the effect of this most extraordinary declaration, which those gentlemen not satisfied with simply resolving, but thought necessary to bind themselves to the performance of by an oath. He says, in arguing the relevancy, they made this resolution, no doubt but the act, the passing of which they meant to oppose, has not yet taken place, and therefore it is no crime; that is not the fact here stated. The charge here stated, is an attempt to intimidate the government of this country, that if a law passed, which they foresaw must pass, if their operations were not put an end to, they were declaring and binding themselves, that if such an act passed, they would still continue to meet to introduce annual parliaments and universal suffrage, till such time as they were compelled to desist by superior force. The gentlemen say, that their object was merely to bring it about by peaceable means.—Is it by peaceable means that they intend to do it, when they tell you that nothing will prevent them but superior force. Is that peaceable means? Is that the language of a man who means to remonstrate? No; it is held out as a threat against the government of the country, daring them to do an act which they know must crush their proceedings.

My lords, my brother has gone on to subsequent resolutions, and one instance he gives, that they had only peaceable objects in view; that they were not to meet after the act was passed, but that they were to act immediately upon the first notice given of a convention-bill; that their object was to procure a number of subscriptions, in order that they might go up to parliament with such force as to prevent the possibility of miscarriage. That is his argument, and ingenious it may be, were it not contradicted by circumstances. From the indictment your lordship sees, that the members of this convention are to be entrusted with a sealed letter, to be given to their constituents, containing the name of the place in which they are to meet in secret, which themselves are not to know, much less the vast number of persons whose subscriptions they are to get; and that is the mode which is to have the effect of preventing, or rather of resisting the execution of this act.

My lord, it is further said, that they had another object in view, the resistance of an invasion; and that this letter must be understood to have applied to a meeting of the convention for that purpose. A very likely story, that a meeting of seven, being all that was required to declare their meeting permanent, or at most twenty-one, that such a meeting was to resist, far less repel an invasion made upon this country. My lord, I apprehend nothing farther need be said with regard to the criminality of the charge as stated in this indictment. My lord, the gentleman himself has given sufficient evidence, that they were not to meet for the purpose of petitioning parliament, [Page] which is legal and constitutional, and there are meetings for that purpose which are attended by people of the greatest respectability. But this seems not to be their object; for the gentleman himself says, that this measure of theirs may be thought by some a bold, by others a daring measure. Did the gentleman mean, when he said this, that the people were to believe that the object they had in view was merely to petition parliament? No; and he could not have described it in more emphatical language, which, I am sure, every person who hears it will feel highly applicable to the proceedings of the British Convention.

My lord, with regard to the next proposition, namely, that this is leasing-making only, and that the act 1703 should have been specially libelled on. My answer is very short, that it is not leasing-making, but real sedition; a crime well known to our laws long before the existence of any statute. Every lawyer who has treated upon the subject, has not only made a distinction between leasing-making and real sedition, but between real sedition and high treason.

My lord, much, no doubt, may be said with regard to the definition of real sedition; for, from the great variety of shapes which this crime may assume, and the various degrees of guilt which the actors incur who commit these crimes, it is absolutely impossible to give any just definition of the crime, so as to comprehend every possible case; but there are to be found treatises in the criminal law which point out a clear distinction, and shew that the charge here laid comes within the crime of real sedition.

My lord, I will beg leave to read the definition of Erskine— the first I shall read is in his small compend. He says, ‘It consists in raising commotions, or disturbances in the state; it is either verbal or real. Verbal sedition, or leasing-making, is inferred from the utterring of words tending to create discord between the king and his people. It was formerly punished by death and the forfeiture of goods, but now, either by imprisonment, fine, or banishment, at the discretion of the judge. Real sedition is generally committed by convocating any considerable number of people, without lawful authority, under the pretence of redressing some public grievance, to the disturbing of the public peace.’

My lord, in his larger work, he says, ‘The crime of sedition consists in raising commotions and disturbances in the state. It is either real or verbal. Real sedition is inferred from an irregular convocation of a number of people, without lawful authority, tending to obstruct or trouble the peace of the community. Such commotions as are aimed directly against the sovereign or state amount to high treason; but where they are raised merely to redress some supposed grievance, it is the crime which falls properly under the term Sedition.’ In like manner a small book [Page] noticed formerly by one of your lordships, Bayne says, ‘Sedition is an irregular commotion of the people, or convocation of a number of citizens, assembled without lawful authority, tending to disturb the peace and order of society.’ Is not this the very crime here stated? I apprehend, what has led my brother into an error has been the confounding of the different senses of the term commotion. Commotion, in an enlarged sense, may no doubt signify a rising in arms against the government of the country; but, in another sense, it may signify an illegal convocation of people, wit [...]ut lawful authority, tending to disturb the peace and order of society. I say, if it was otherwise, there could be no such thing as real sedition; because, the moment, according to them, that it becomes real sedition, it ceases to be sedition, it is high treason, not only by the treason laws as they now stand, but is clearly high treason in the old treason laws. Therefore, I apprehend, the distinction between real sedition, and verbal sedition, is perfectly obvious. It is not necessary, in order to constitute real sedition, that there should be a rising in arms; for the moment there is a rising in arms, it ceases to be sedition. Leasing-making, on the other hand, implies this, and no more, the uttering or speaking, either in convocations or spreading by means of libels or hand-bills, any wicked, false, scandalous speeches, which tend to introduce jealousies among the people, and to overturn the state. But sedition may exist without uttering any scandalous and false speeches; as, for instance, when this gentleman declared and bound himself by an oath, to resist any act that might pass to prevent the meeting of this convention—this was not a false speech; it contained, in a melancholy truth, that these people set themselves up in defiance of the law of the country, and declared they would not desist from their wicked proceedings till they were compelled by superior force.

My lord, it is not necessary to look to our statute book, for the exact definition of sedition, or when it was first introduced into the law of Scotland; for it has been well observed, by all of your lordships, that it must have existed, not only in this, but in every country; that it is coeval with the existence of society itself, because it is impossible that any country can exist, if the crime of sedition be allowed to pass without any punishment at all. In the law of Scotland, it existed for many generations, before it became the object of statute law, till the punishment applicable by the common law was not sufficient to refrain the vices and wickedness of the people; and then acts were made only regarding these particular species of sedition which appeared to be most criminal, and which appeared to be most levelled against the government of the country. At that time it never occurred to the justice of the legislature, and it would have been unjust if it had, to have framed an act so comprehensive as to include every species of crime which could fall under the term of sedition, because they must have [Page] known that it is a crime, not only infinite in its variety, but also infinite in its degrees and shades of guilt. Particular acts of sedition were declared to be capital, and with respect to some of them, I must call your lordships attention, for they contain a particular specification of the crime here charged; and had this gentleman been tried, prior to 1709, when the old treason laws existed in this country, he must have been tried for high treason, and punished with death.

My lord, the first of these statutes was stated by the Solicitor General, when he first argued the case to your lordships, 1584▪ chap. 130, ‘Therefoir it is statute and ordained, be our said soveraine lord, and his saidis three estaites in this present parliament, that nane of his lieges and subjectes presume or tak upon hand to impugne the dignitie and the authorite of the saidis three estaites, or to seek or procure the innovation or diminution of the power and authoritie of the same three estaites, or any of them, in time cumming, under the paine of treason.’ Does not this gentleman, I would ask, impugn the dignity of the estates of parliament, when he says, that they would pay no regard to the wisdom of parliament, and that they would continue to meet till such time as they were compelled to desist by superior force; and he does not content himself with that, but justifies their doing so upon the laws of God, and right reason: he says, ‘if such a law were suffered to pass, if men were not allowed to utter their complaints, a number of fierce and rancorous passions would arise, and we would seek to appeal to that last terrible decision, the event of which is uncertain, but which God and nature allows.’ Here the gentleman is not only saying, but binding himself by an oath, that if the legislature should enact a particular statute, they would resist it, by continuing to meet, till they were compelled to desist by superior force. Here they are telling the whole country, that their resistance is sanctioned by the laws of God, and the laws of reason. I apprehend it to be clear therefore, that if he had been tried prior to that act, he must have been tried and punished for high treason, according to the statute I have now read, which inflicts the punishment of death. But, my lord, there is another act applicable to the present case, it is the act 1662, chap. 2, ‘An act for the preservation of his majesty's person, authority, and government. And since the rise and progress of the late troubles, did in a great measure, proceed from some treasonable and seditious positions infused into the people, that it was lawful to subjects for reformation to enter into covenants and leagues, or to take up arms against the king, or those commissioned by him, and such like;’ and so on till it comes to the following enactments. ‘Like, as his majesty and estates of parliament, reflecting on the said consequences of these rebellious courses, and being careful to prevent the like for the future, have therefore statute and ordained, and by these statutes and ordains, that if any person or persons shall, hereafter [Page] plot, contrive, or intend death, or destruction, to the king's majesty, or any bodily harm tending to death or destruction, or any restraint upon his royal person, or to deprive, depose, or suspend him from the stile, honour, and kingly name, of the imperial crown of this realm, or any others his majesty's dominions, or to suspend him from the exercise of his royal government, or to levy war, or take up arms, against his majesty, or any commissioned by him, or shall entice any strangers or others to invade any of his majesty's dominions, and shall, by writing, printing, preaching, or other malicious and devised speaking, express or declare such their treasonable intentions, that then these persons are to suffer death, as in cases of treason.’ Have not the gentlemen expressed, in the strongest terms, and bound themselves by oath, that they would resist the government, and that they would resist it by force? And they justify force by the laws of God and reason. Is not this then an intention of levying war against the king? Therefore, if the gentleman had been tried upon this statute, prior to the statute of 1709, he might have been punished as a traitor; because he has declared his intention to be to make war against the government, till superior force compelled them to desist. If the gentleman had been tried, even after the passing of the act 1703, and before 1709, he must have been tried and punished as a traitor. And, my lord, what effect is the introduction of the treason laws into this country to have? Are these acts of sedition, of such an aggravated nature, as are declared treason by law, not to be liable to any punishment whatever? For, my lord, admitting that there is no such thing as real sedition, then I say the act 1703, give it the widest range possible, never can reach those acts of sedition, which were declared treason by former acts. But, my lord, the natural consequence of the operation of the treason laws of England, coming into this country, is not to have the effect of leaving these crimes without punishment at all, but leaves them exactly in the same situation in which they were before this act of parliament was introduced; and your lordship is intitled to punish, at common law, as your lordship would have done if the case had been tried prior to the passing of these acts.

My lord, if I am right in this position, that this crime is real sedition, and that falling under those acts, it might have been punished as treason, it is matter of very little consequence what is meant by the word banishment; because [...] the first place I apprehend this case is not leasing-making, as I have endeavoured to shew your lordship; but suppose the case were leasing-making, I am not bound, in this case, to lay the libel upon the leasing-making statutes; for, although it was well observed by your lordships that where an act creates a crime, and specifies the punishment to be annexed upon the conviction of such a crime, we must apply the statutory punishment. But, my lord, it often happens, that acts of parliament are introduced where the crime existed at common law before; and, in these cases, [Page] whether the acts introduced a lesser or higher pun [...]hment, unless the act specially takes away the crime at common law, specially deprives you of the jurisdiction inherent in this court, of trying at common law, there is no occasion for that statute. Your lordships know when the crime is made greater, I may charge it either upon the statute or the common law; and it often happens that the object of the statute is to give jurisdiction to a court that it had not before, or to introduce a more summary mode of punishment; and, in that case, unless the act declares that you are not to try at common law, it is not to be presumed that the common law power is taken away. For, in the case of bribing the excise officers, though it is punishable at common law, there are statutes imposing severe fines; and your lordship will recollect, in the case of Mr. Stein, for bribing Mr. Bonar, it was strongly urged that, as the act introduces the punishment of severe fine, you are not entitled to disregard this act and go to a trial at common law, but you must lay the libel upon this statute, and confine yourself to the punishment inflicted by that statute; but your lordships common law powers are not taken away, and therefore you are entitled to try and punish that gentleman at common law.

My lord, I may exemplify this case by an instance which has been introduced by my brother; in pleading this case, he mentioned the case of several people tried upon the leasing-making statutes. Those persons were not tried upon the leasing-making statutes alone, for they were tried upon the laws of God, and upon the laws of this and every other well governed realm. I will also refer the gentleman to another case, in 1712, when the party tried, and the able counsel who defended him, knew perfectly well the meaning of the word banishment. His indictment is laid upon the act 1703, and is also laid upon the laws of God, and of this and every other well governed realm. The counsel for that gentleman pleaded a variety of objections to the relevancy of that indictment, but it never occurred to the gentleman to state, that it was not competent for the court to try him both upon the common law of this land, and upon the statute law. My lord, it never occurred to him that the punishment was different by the common law; they never asked your lordships to dismiss the indictment, because it was laid upon both laws, nor did they argue that your lordships ought to define and declare to the jury, that the term banishment, in this act, was exile and not transport [...]ion:—No such thing, and it cannot be supposed that it was through ignorance, for they were men learned in the law, and living at the very time the acts were made.

My lord, this, in my mind, affords a strong argument, not only to shew that an indictment is relevant at common law, although an act of parliament has been introduced, making it a crime, and stating a particular punishment, unless that act destroys your lordship's power at common law: it goes to shew that under the word banishment, transportation is likewise included, or the gentlemen would certainly have insisted upon so material a thing for the safety of their client.

[Page]My lord, this leads me to take notice of the last proposition, which is the main object of the whole argument in this case, namely, that exile, or banishment from Scotland, only ought to be the punishment.

My lord, I will not follow the gentleman into dictionaries to look for the term; and the one that he has found does not seem to afford him any assistance. But, if I can shew that transportation was considered as included in the term by the lawyers of the times, and by historians of the times, there is an end of this question; for, independent of the various sentences which were read to your lordships upon the last occasion, and which I shall not consume your lordships time by reading again, from the books of adjournal of this court, not only prior to the passing of the act 1703, but down to 1756, when the punishment of transportation was introduced, I shall refer your lordship to the sentences of the Court of Session, which shew that they understood banishment in the very same sense; and prior to 1756 there are a variety of cases which shew, that from the incidental jurisdiction they had in the punishment of forgery, they are entitled at common law, without the aid of any statute, to send people to the plantations; and the uniform form of the sentence is in these words, 'ordain that he be carried back to prison, there to remain till an opportunity offers of carrying him to some of the plantations in America, there to be banished for ever.' In some cases, it is banished for ever, in other cases, for a certain number of years.

My lord, I might also resort to the historians of the times—I will read to your lordship one passage from Guthrie's History, which clearly shews that he understood transportation to be included in the word banishment. Immediately after the execution of the Duke of Argyle, in 1685, Guthrie, speaking of what acts of parliament had declared, says, 'they declared their abhorrence and detestation of all resistance, upon whatever pretext, by deed, word, or writing; and, at last, they passed an act to approve whatever had been done by his majesty's Privy Cooncil, Justice Court, and those commissionated by them in banishing, imprisoning, or fining such as refused to take and swear the oath of allegiance, and to assert the royal prerogative in their utmost extent.'

Your lordship knows, that in this reign, and in the reign of his brother Charles II. a number of unfortunate people, because they would not subscribe bonds of peace and the oath of allegiance, were sent by the Privy Council to the plantations, by ship-loads; and also a number of conventiclers were remanded back to prison, till an opportunity should be afforded of transporting them to Barbadoes, where no less than eighty of them were lying for transportation. The king would never ratify a deed of the Privy Council, who banished a man from his dominions in Scotland, to his dominions in England, because he would not swear the oath of allegiance. It is perfectly well known, that hundreds of our fellow-citizens were seat in those days to the plantations. My lord, I [Page] do not read this as an example for imitation; no man can justify such arbitrary proceedings; but no man, I am sure, was ever sent from Scotland to England, because he refused to take the oath of allegiance. I will say there is no instance of such a case to be found; they were all sent to the plantations; and, when your lordship sees this author, when speaking of those transportations, makes use of the word banishing only; and therefore, it is very clear that his idea of the word was the very same which I am now contending for before your lordship, namely, that the word banishment is a general term; that transportation is only one mode of carrying it into effect, and that under the term banishment, transportation was intended by the act 1703.

My lord, independent of that, I might ask your lordship, is it natural to suppose, if it was their intention under this act, that no man should be transported, that they would have made use of the very term which this Court have uniformly used when they inflicted the punishment of transportation. No, my lord, the very reverse is the natural supposition. Besides, I might state to your lordships that the object of the legislature was merely to take away the capital part of the punishment; that is perfectly clear from the words of the act itself. It says, ‘that in respect of their generality, and the various construction which the same may admit, they may be as to the foresaid capital punishment, of dangerous consequence, doth, therefore, with advice and consent of the estates of Parliament, abrogate and discharge, in all time coming, the foresaid sanction and pain of death and confiscation contained in the saids acts; and statutes and ordains, that the punishment of the crimes, therein mentioned, shall for hereafter only be arbitrary,’ and then enumerates the punishment banishment, fining, and imprisonment, which were the common law punishments then in use. My lord, I beg leave to refer your lordships to the act 1701, where the power of transportation by this Court is expressly recognized. ‘As also that no person be transported furth of this kingdom, except with his own consent, given before a judge, or by legal sentence.’ I would ask the gentleman where is the legal statute which authorizes transportation? I may, perhaps, be told, that the act 1670 authorizes transportation, because they were to be banished to the Indies; but I will remind them, that that act was rescinded in 1690, the second act of the second parliament of Charles II. Here is the only act which mentions the banishing a man to the plantations, rescinded in 1690; and yet, in 1701, we find an act expressly recognizing the power of transportation; because it says, that no man is to be transported but by his own consent, or by legal sentence. Where then is the statute that authorizes transportation? I say there is no such thing; and therefore it is clear that it is included in the term banishment, otherwise there can be no legal sentence of transportation. The gentleman says that, by [Page] the act 1703, banishment is to be understood; and when an act enumerates banishment, fining, and imprisonment, that you are not to enlarge those, or introduce any other punishments which are not there specifically mentioned. I should be glad to know what explanation they are to give of the last clause of the act 1670, with respect to their refusing to depone as to conventicles. The object of that act was to discover meetings of conventiclers, and to declare the punishment to be inflicted upon those who should refuse, when called upon, to say what they knew respecting these conventicles; the punishment is to be fining, close imprisonment, or banishment. The legislature foresaw that when the man was called upon to declare what he knew, he might include and blame himself by so doing, and therefore it was thought necessary to enact a clause freeing him from the punishment, and therefore it was provided, that no man's declaration against any other person should infer against himself the loss of life, or limb, or banishment.

My brother has told your lordship, upon the authority of Sir George Mackenzie, that banishment by transportation was illegal, because it is impossible to confine a man to any place to which he is banished, as though your lordship had a jurisdiction over him while he is in that place undergoing the sentence of banishment; but that is not the case, for from the moment he has once landed, your lordship has no further authority; you are not confining him there; he may go where he likes, provided he does not return to this country. My lord, he has also appealed to another passage in Mackenzie, to shew that this was an illegal sentence in his justification of the reign of Charles II. where it is said, that people were sent abroad from a principle of mercy, because these people might otherwise have been punished by death; and, my lord, it is very true as applied to those people who were taken at Bothwell Bridge in 1679; because historians tell us, that about 1200 of them were taken with arms in their hands, and in open rebellion, it was therefore mercy to send them abroad and not try them for their lives; but it was only those persons who refused to subscribe declarations that by the act 1670 were to be sent abroad, and the privy council had an express power of sending them to the plantations.

My lord, it is a mistake to say, that sending people to the plantations, was for the first time only introduced at the time of the rebellion at Bothwell Bridge; for all those who were taken, a great many years before at the rebellion which was crushed at the Pentland Hills in 1667, I think, were sent there likewise. And if your lordship reads the history of this country prior to 1660, you will find a variety of instances where people were sent to the plantations for refusing to subscribe bonds of peace, and refusing to take the oath of allegiance. When was the first time it was introduced into this country, I know not, however, I know from history, that it was not upon the passing of that act 1660; because, my lord, I read of ship loads of unfortunate people having been sent away, who thought it [Page] inconsistent with their duty to subscribe bonds of peace. My brother has referred to the act of 1609, which mentions banishment; and his argument is that transportation could not have been intended, because transportation was unknown in those days, and therefore it appears singular that the act 1609, when repealed by the act 1703, on account of the severity of its sentence, should have enacted a punishment much more severe than the former. Upon what foundation or authority the gentleman says, a person could not have been transported under the act 1609, I am at a loss to discover; for they had just as much a power, and just as much an opportunity of transporting in 1609, as they had in 1660, when I know a great many transportations took place.

My lord, I see no reason why transportation could not have been indicted under in the year 1701, as well as 1660. But I will read to your lordship the last clause of the act 1609. "And nevertheless, finding therin sik malicious letts as the devile and his supposts do usually suggest to the hindrance of all just and god [...]ie interpryses, specially, by the false and calumnious brutes; speeches, and writs, craftelie uttered and dispersed by some lauless ond saulles people of this realme, aswell in privat conferences as in their meetings at taverns, all houses and playes, and by their pasquills, lybels, rymes, cockalans, commedies, and siklyke occasions, whereby they slander, maligne, and revile the people, estate, and country of England, and divers his majesties honourable counsellers, magistrates and worthie subjects, of that h [...]s majesties kingdome. The continuance whereof being able to incense the people of England to just grief and miscontentment, may not only hinder the intended union of all the good subjects of this monarchie, but stir up in them sik irreconciliable evil will, as with time might bring forth maist dangerous and harmful effects." Can your lordship believe, that as a punishment to men who had produced such irreconcileable hatred between the two kingdoms, this act intended that they should be banished into England, where they would have a much better opportunity of completing their purpose than they could have in Scotland. I am perfectly sure a judge would have been laughed at who had sent such a man into England. I am satisfied that no sentence ever was passed upon this act. It was an act passed by Scotland, under the impression that England would pronounce a similar judgment. In evidence of this I shall read to your lordship what Sir George Mackenzie says. ‘But, in my opinion, this act reaches only such as speak reproachfully of their nation, country, and counsellors; but the whole act ought to be abrogated by our parliament, as being past by us in expectation that England would make such an act in their parliament, which they never did; and, upon which account, it was never in observance with us.’ I am perfectly satisfied that if this act had ever been put in force, if any sentence had ever been imposed, it must have been transportation.

My lord, I don't feel it necessary to trouble your lordship any [Page] further, neither of the positions laid down by my brother being applicable to the present case, because it is not leasing-making, but sedition, so near the crime of treason, that by the ancient treason laws of Scotland, it would amount to treason. The act at common law remains in full force, and I am perfectly clear whether you take the intention of the legislature, or whether you take the words themselves as explained by historians, by the legislature itself, and by the sentences of this Court and the Court of Session, your lordships cannot have a doubt, but that under the act of 1703, you have it in your power to send this gentleman, or any other who may be found guilty of sedition, to transport him beyond seas.

Lord Justice Clerk. Mr. Montgomery, you have gone into it very ably and very fully.

Mr. Solicitor General. My lords, the points which you have now heard debated, are points upon which I have made up my mind most fully, and which I should not be afraid to argue in any court, in any place, or against any opponent. But, my lord, when I consider that this matter underwent a very full discussion this day fortnight, and when I consider that your lordships, then heard these points stated with all the ability which the bar could furnish (and I cannot suppose that your lordships, have drank so deeply of the waters of Lethe, as to have forgot what passed upon that occasion,) I think it unnecessary to trouble your lordship with many words, more especially as so much justice has been done to it, by the gentleman who has already spoken.

My lord, as to the first point, whether there is such a crime known in our law as that of sedition, I shall not say a single word, because no person who knows any thing of our law, can entertain a single doubt.

The next point is, whether the facts charged in this indictment do amount to the crime of sedition, yea or no? and after what we have heard so fully discussed, and after what your lordships have determined upon the subject, I cannot suppose that any argument is necessary upon this branch of the subject.

My lord, you have been told that all the crime which this pannel has committed, is the entertaining ideas favourable to universal suffrage and annual parliaments, and in which ideas he was sanctioned by the most respectable names. My lord, whatever opinion those persons may privately entertain, I have not an opportunity to know, but I beg leave to ask of the counsel on the other side. who, I dare say, are better informed than I am. Have Mr. Pitt and the Duke of Richmond ever formed a convention in England? Have they ever called themselves the British Convention? Have they ever called themselves the representatives of the body of the people? Have they ever told the parliament of Great Britain, that they shall not presume to disperse them? Have they ever told them that if they dared to bring into parliament a certain bill, they will resist it by force? Or [Page] have they told the public, that in case of an invasion, they will meet in a secret place? if they have done so, it has been unknown to me —and if they have, it says very little for those to whom the criminal laws of England are entrusted. But as far as I know, no such thing has ever happened.

My brother, Gillies, who pleaded the cause with very great ability, told your lordship, that even if the facts stated were proved, as well as the criminal intention, (which I admit is absolutely essential) that in that case the libel ought not to be sustained as relevant, in so far as the charges amount to high treason. Now, my lord, I will so far agree with my brother, that in making out this charge before the jury, it will be necessary for me to satisfy them that he had a criminal intention, and if my brother can shew me, that the facts charged in this indictment do come within the treason act, of Edward III. we shall very soon make a short argument of this case, because I shall immediately desert the diet. We shall have no more trial upon this indictment, but I shall immediately apply to your lordships, that that gentleman be committed for high treason. It is a thing I have fully considered, and I am perfectly satisfied. I have no doubt of proving the intention, of which the jury will judge, and that they amount to something which is very near treason, the most aggravated species of sedition that can be imagined.

My lord, the only other point for consideration, relates to [...]he degree of punishment which your lordships have power to inflict, supposing the crime to be proved. Now, my lord, I apprehend it is perfectly well established, that banishment by transportation, which I say is a particular mode of banishment, is known to the common law of Scotland; it was a power exercised by the Court of Session without a statute, and exercised by all the criminal courts in Scotland. When this practice was first introduced, it is impossible for me to say; but, I believe, much earlier than is generally supposed. It is sufficient for me to state, that transportation is known to the law of Scotland, and is acknowledged and recognized in the fullest manner, by the act of 1701.

The question therefore is, whether your lordships in judging of the crime of sedition, are restrained from inflicting that punishment, supposing it to be a legal one. I must first shew it to be a legal one, and then, whether there is any statute which restrains the power of the court; and this leads me to consider the act 1703, which is the single act that the gentleman found upon, as limiting the power of the court; and upon this statute it is necessary for me to say very little. Upon looking at the enacting clause, it appears to me, that the only purpose of the statute was to take away the capital part of it. It is very true, the act says that the court shall inflict the punishment by fine, imprisonment, or banishment; and my brother tells your lordship, that there is a very material difference between banishment and transportation, and he shows your lordship from Johnson's Dictionary, Shakespeare, and other respectable authorities, that banishment [Page] and transportation are different things: but I take it to be a very clear point, that in judging of the statute law of Scotland, we are not to go to an English dictionary, or to poetical writings—there can be but one authority, which is neither more nor less than the language of the common law of Scotland, and where are we to find it? We are to find it in the records of this supreme court—search has been made in those records, and by that search it is made clear, I should suppose beyond the possibility of contradiction, that according to the law language of Scotland, before the statute, at the time of the statute, aad after the statute, that banishment did include transportation.

My lord, instances were pointed out to your lordship, which it will be unnecessary to repeat, because it is impossible that they can be forgotten, in all of which your lordships inflicted the punishment of banishment; and, in order to carry that into execution, you ordain and appoint the persons to be banished beyond seas.

My lord, I beg leave to mention one case which has not occurred before, and that is a case which happened in the month of February 1704, which your lordships will observe was just five months after passing the act upon which the gentleman found, the act of 1703, having been passed in the month of September, and this case was determined in the February following. It was a case which occurred before the Privy Council of Scotland, which your lordships know was at that time a court invested with a jurisdiction of a very considerable extent. It was a trial upon leasing-making, (the very crime upon which the gentlemen found their argument) upon the 4th of February 1704, a libel against Mr. David Bailie, brother to Captain Robert Bailie, of Manor Hall, for leasing-making, and the conclusion of it, after setting forth the fact is, that the aforesaid David Bailie, ought to be severely punished for the same, with the pains of law, at least conform to the 4th act of the last session of the current parliament, entitled, "act anent leasing-makers and slanderers." Here your lordship sees this libel specially refers to the statute 1703, and prays, upon the party being convicted, that he should be severely punished for the same, with the pains of law, at least conform to the 4th act of the last session of the current parliament. My lords, this was tried before a court who did not sit at the distance of ninety years, but who sat within five months after the act passed; and therefore, it is natural to suppose that they understood its meaning; and, my lord, I observe by the sederunt, that the president of the Court of Session was there, the Lord Justice Clerk was there, and many other of the judges, and therefore it is impossible they could mistake its meaning. In the first place the party acknowledges the offence; and therefore there was no need of any trial as to his guilt; and in the next place he was assisted by no less than six able counsel, and a great deal of argument there was upon it—but when you come to the sentence, "the libel having been found relevant to infer arbitrary punishment, that the two letters libelled on [Page] were all his hand-writing, the court hereby ordain and adjudge, that the said David Bailie be transported to the West Indies, that he be set in the pillory from eleven to twelve in the forenoon, and in case the person cannot pay the fine, to be transported, and to be kept in the prison of Ayr until he be so transported."

My lord, I know very well that it is not the fashion of the times to think a great deal of our ancestors, but I shall admit, that in point of wisdom, in point of philology, in point of philosophy, and many other fine speculative ideas, I will admit that our forefathers were by no means comparable to us in those fine theories which modern philosophy has found out with regard to religion and government; witness the glorious state of France at this moment. But, my lords, can we understand that act better than they did? Did not they know their own meaning better than we do? And yet your lordship sees the judges who sat in that very parliament, within five months after sitting in a court of justice, upon a case in point, they understood the meaning of banishment, and they transported him to the West-Indies; and, my lord, this is not all, I see, at this time, the gentleman was not undefended, he was assisted by six able counsel, and not one of them pretends to say he had the smallest doubt about it; they argued many points of law, but this was not so much as mentioned, it was clear beyond the possibility of doubt that it included transportation. I cannot have a doubt, but that your lordships, upon the fair construction of this act, have the power, in case this pannel should be convicted by the verdict of a jury; but it will be with your lordships to judge whether you think he merits it or not. This is a complete answer to the two cases the gentleman has cited. The act does not bind you to transport, but it is an arbitrary punishment in the discretion of the court; and, in the present case, it will be with your lordships to judge whether you think the extent of the crime merits such punishment. Your lordships can have very little doubt about the matter, and, I think the proper time for that determination, would be after the verdict of the jury.

Mr. Laing. My Lord Justice Clerk. By your lordships appointment I have undertaken a cause which I at first declined, not only from personal considerations, which I forbear to mention, but because my recent avocations have been very different from the pursuits of this bar. The cause of my client, though undertaken by your order, in now my own; and I will plead for him, as I would for myself, were I placed in his situation at the bar. No considerations shall now deter me, nor shall the fear of obloquy relax my efforts to establish his innocence, and overturn the preposterous charges of this indictment.

The arguments maintained on the relevancy may be reduced to three propositions, to which, whatever illustrations or additional arguments my recollection and my strength may enable me to contribute, shall be specifically directed.

[Page]1. That the facts charged in the indictment are not of a criminal nature; or if criminal, that they constitute merely a statutory offence.

2. That where the crime is provided for by statute, a severer, or a different punishment cannot legally be inflicted at common law.

3. That the punishment of the facts charged in the indictment, if indeed criminal, are, as regulated by 1703, chap. 4, fine, imprisonment, or banishment; meaning thereby banishment forth of the realm alone.

My lord, on the first proposition, that the facts charged in the indictment, if criminal constitute a statutory offence, the argument of the prosecutor amounts to this, that sedition is a technical or generick term, comprehending a variety of different crimes; yet unsusceptible, at the same time, of a definition applicable to every crime. That there is no definition of sedition strictly applicable to each case, I shall readily admit, for the definitions given by our lawyers are founded on a previous distinction between real, and verbal sedition. The former is uniformly described as an actual commotion, or rising of the people; the latter, the utterance of false reports, or the publication of writings tending to excite such commotions, or to overturn the established constitution or government. My lord, this is not an ideal distinction; it originates from the very nature of crimes, from the difference between the attempt and the deed, from the necessity of distinguishing between what is actually committed, and that which is perhaps an abortive attempt to effect the deed. In murder, a conspiracy against our neighbour's life, when carried into execution, must be distinguished from an attempt to instigate another to the commission of murder. So in perjury, subordination of evidence is a crime of a very different complexion from perjury itself. Here then is a distinction never to be removed from the nature of crimes; the intention alone does not constitute the crime; unless it is carried into execution it cannot amount to the crime which it failed to accomplish. This distinction is also founded in the nature of crimes against the state, which, I observe, are all reducible to sedition, to treason, and to verbal sedition. Whatever tends to the destruction of the state may be termed sedition; but there are acts of sedition exalted to treason, ennobled on account of their dangerous consequences, and punished as treason, by attainder, forfeiture, and a rigorous death. Sedition itself, is a popular commotion to the obstruction of law, or the interruption of public tranquility, not directed, however, against the constitution, nor amounting to treason. (Thus an insurrection though in arms, to destroy an inclosure, is in England a riot, in Scotland sedition; but an insurrection to destroy all inclosures constitutes treason.) But there is a crime different from this; there is an attempt to excite, or to commit sedition; an attempt which, in treason, and in treason alone, is converted into an overt act, and, on account of its dangerous consequences, punished by statute, as treason itself. State [Page] crimes, therefore, are either sedition or the attempt to excite it, or certain actions converted, for the preservation of the state, into treason. I conclude, therefore, both from the nature of crimes in general, and from the distinctions essential to crimes against the state, that an attempt to commit sedition never can constitute actual sedition.

This distinction, and these definitions may be variously illustrated. Nor in a question concerning the signification of terms, will your lordships reject the assistance of philology, or of any science that ascertains their common acceptation, or their proper import. If we resort then to the acceptation of the word in our own language, sedition is defined by Johnson, our greatest philologist ‘a tumult, an insurrection, a popular commotion, an uproar.’ Here an actual commotion is specified, not that seditious attempt, the tendency, or the design of which is to excite commotion. If we examine its etymology, sedition, seorsum itio, is a separation or secession from the body of the people; and in this sense, the secession of the Roman people to the Aventine mount, would have been a sedition, had not the cause of the people ultimately triumphed. But the speeches of Sicinius, which produced that secession, whatever was their tendency, could never with propriety be denominated sedition. The sedition described by Virgil.

Ac veluti magno in populo cum saepe coorta est

Seditio, faevitque animis ignobile vulgus,

Jamque faces et saxa volant, furor arma ministrat;

the actual commotion described in this simile is very different from that attempt to create sedition, of which the brutal Appius accuses the father and the lover of Virginia—"Certis indiciis compertum se habere, nocte tota coetus in urbe factos ad movendam seditionem. Livy." Convocations were formed in the city, and during the night, but Virginius and Icilius were only accused of attempting, by these nocturnal convocations, to stir up the people to actual sedition.

My lord, the application of this distinction is sufficient to determine the nature of the crime. If the corpus delicti consists opinions and speeches, or in resolutions the concurrence of opinions and result of speeches, these are criminal on account of their tendency to excite sedition, or disturbance in the state. The tendency of the offence constitutes the guilt; for I maintain, that in themselves the speeches are not criminal. The resolutions, if locked up in the breast, the speeches, if uttered to the winds of the desert, the writings, if concealed in our repositories from human observation, are neither criminal nor obnoxious to punishment. In the celebrated case of Algernon Sydney, the papers discovered in his cabinet, and never promulgated, afforded no legal evidence of treason, and would have constituted no species whatever of sedition. I repeat it therefore, that the speeches are not in themselves criminal. The man who writes, without attempting to disseminate or to publish, a seditious composition, may [Page] remain in the country as an innocent citizen; and, however disaffected in secret to government, will still enjoy the protection of its laws. Your lordships will therefore observe, that it is not the malus animus which is punishable, not that mind which is hostile to the state, but the declaration of that hostile disposition malo animo, to the effect of exciting disturbance, or with a design to generate similar hostility in the minds of others. The fact itself may be inoffensive; the attempt may be impotent; but the attempt, though frustrated, then becomes criminal when dangerous to society; and its tendency is the circumstance which constitutes the crime.

My lord, the principle which I have thus endeavoured to establish, is fully recognized in the law of England, in which contempts or misprisions against the king or government, offences equivalent to verbal sedition, are punished on account of their tendency alone. "Contempts and misprisions (says Blackstone) against the king's person and government, may be by speaking or writing against them, cursing or wishing him ill, giving out scandalous stories concerning him, or doing any thing that may tend to lessen him in the esteem of his subjects, may weaken his government, or may raise jealousies between him and his people." Though denied in argument, the principle is acknowledged in the indictment itself. The corpus delicti is there stated, as "of the most dangerous and destructive tendency, hostile to the peace and happiness of society, and tending to subvert the constitution of the realm." In every other indictment for verbal sedition, the same tendency has been uniformly charged.

But, in opposition to the concurrent authority of lawyers, in contradiction to that essential distinction between a crime attempted, and actually committed, sedition, it is said, is a technical epithet, expressive of a variety of distinct crimes, but incapable of a definition to which every seditious offence may be reduced. Sedition is represented as a hydra united below in a common trunk, but disparted above into a thousand heads. Of the seditious it is said,

Their aims are various, as the paths they take

In journeying through life.

Nor are their crimes, though obnoxious to legal penalties, reducible to any legal definition or standard.

My answer is this, that the supposed variety, so unsusceptible of definition, proceeds from the creation of various statuory acts of sedition, just as lesser offences are sometimes converted into statutory treasons. Simple convocation, unarmed conventions not tumultuous, bonds and leagues among subjects, are acts of sedition created by statute, and certainly not included in the legal definition affixed to sedition: an actual commotion or insurrection of the people. But at common law, the definition is not the less true, that certain acts not comprehended under it, have been declared by statute tantamount to sedition, and sanctioned by the penalties attached to that crime. In treason, of [Page] which the definition, contrary to what has been formerly asserted, is precise and explicit, in treason, which consists in counteracting, or betraying that allegiance due from the subject by birth or residence, 'the [...]zeal of the legislature,' according to Blackstone, 'has sometimes de [...]arted from this its primitive idea.' To assert that the legislature cannot limit or alter the succession, is a statutory treason, not compr [...]nded under its legal definition. But the legal definition is not [...] destroyed.

My lord, the authority of Erskine and of Bayne has been also quoted, to prove, that real sedition is a convocation without authority, tending to disturb the tranquility of the public. Had the gentleman quoted the preceeding sentence from Erskine, that ‘sedition, consists in raising commotions or disturbances in the state;’ your lordship would have perceived from the context ‘Such commotions as are directly against the sovereign or the state, amount to high treason, but where raised to redress some supposed grievance, are properly sedition,’ that the intermediate passage, related, not to peaceful and unarmed conventions; but to those irregular and tumultuous convocations, that are always riotous. Bayne, whose institutions are a brief and imperfect abstract from M'Kenzies, has obviously confounded sedition at common law with a statutory offence. Popular commotions to the obstruction of law, or the disturbance of public peace, were punished at common law; unarmed conventions whatever was their tendency, prohibited by statute. Happily the laws against peaceful, unarmed conventions are consigned to oblivion; but to the definition of real sedition at common law, [...]ayne has added a convocation of citizens without authority, and to render it illegal, specifies its tendency to disturb society. If tumultuous, the convocation was illegal at common law, but the statutory crime of convention, to which the definition of sedition is thus arbitrarily extended, was illegal whatever was its tendency, whether directed to the worship of God, or to the obstruction of public tranquility and justice.

Such then, my lord, is the law. I shall now proceed to examine, the facts specified in the indictment, whether, and how far they amount to the crime of which my client is accused. The first is, his accession to an illegal and seditious convention; for I will not presume that a peaceable convention of an innocent tendency, constitutes a criminal charge to-day. The illegality of such a convention must consist in the objects to which it was directed, its seditious nature in the measures adopted to attain these objects. I shall therefore examine, first the objects proposed by the convention, and then the mode in which these were pursued.

And here, my lord, I affirm, that annual parliaments and universal suffrage, the sole objects proposed by the convention, are legitimate and constitutional objects of pursuit. These are principles recognized in the theory of our constitution, nor questionable unless as expedient in practice. Annual parliaments are confessedly a [Page] question of mere expediency, like those of a triennial or septennial duration. They were appointed, and their legitimacy recognized by different statutes, the 3 and 34 of Edward III. and continued, till Richard II. in whose unfortunate reign the use of long parliaments was first introduced. Your lordships cannot be ignorant that motions for annual parliaments have been annually renewed in the House of Commons; nor is it necessary for me to assert the constitutional nature of a question, which, in 1745, when agitated in the House of Commons, on the motion of Mr. Carew, was negatived only by a majority of thirty two.

But your lordships hitherto have uniformly reprobated universal suffrage, as an illegal object, repugnant to the principles of our happy constitution; productive of anarchy, the sources of misery; and, as no people have a right to will their own misery, it is inferred, that none are entitled to universal suffrage. Without controverting this logical education, I shall argue, not to a political, but to a legal effect, that universal suffrage is a principle conformable to the spirit, and recognized in the theory of our constitution, though from motives of expediency, not adopted in practice to its utmost extent. What is the object proposed by universal suffrage? That freemen, who possess an independent will, not subjugated to the power of another, shall enjoy, each his suffrage, in the election of those representatives by whose acts they are bound, by whom their property is disposed of, and their conduct regulated. Who are excluded in this scheme of representation? Idiots, minors, paupers, and criminals, all those who have no will of their own, or what is equivalent, no honest or independent will. What then is the theory of representation in the British constitution? That those only shall be excluded from voting, whose situation is such that they cannot be presumed to have a will of their own. Each proceeds on this common principle that the persons of freemen, are represented, not their property, and each aspires to this sublime idea, that the system of representation should be established on a basis as broad as its superstructure. The practice of our constitution has degenerated, it is true, from its theoretical perfection, whether, as some suppose, from the imperfection natural to the human race, or, as others imagine, from the decay and decriptitude of every human institution. But the principles, my lord, are the same. Idiots and criminals are excluded in the scheme of universal suffrage, on the principle that they have no will of their own, and on the same presumption, poverty, in the practice of our constitution, is a cause of exclusion. Qualifications of property are therefore no principle in our constitution, but a test of that principle which our constitution requires. Instead of constituting, as has been erroneously asserted, the right of suffrage, they are merely a test of that independent suffrage, which, by the principles of our constitution, is considered as the inherent birth-right of every British freeman.

My lord, this is no new doctrine which I now maintain. It is supported by the most popular, and let me add, the most orthodox [Page] writers on the English constitution. Montesquieu, in a passage, (which as the French may implicate sedition, I shall translate to your lordship) maintains: ‘That in England, all the citizens, in their different districts, ought to have a right of suffrage in the choice of their representatives; those only excepted, whose situation is so vile, that they must be reputed to have no will of their own." To the same purport Blackstone informs us, 'As to the qualifications of the electors. The true reason of requiring any qualification, with regard to property in votes, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. If it were probable, that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. But, since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. This," he continues, "is the spirit of our constitution: not that I assert it is in fact quite so perfect as I have endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people.’

Here, my lord, universal suffrage is represented by Blackstone as congenial to freedom, and the spirit of our constitution, qualifications, as the test of an independent suffrage. But why this test? Not that an universal equality of suffrage is productive of anarchy, anarchy of misery; but without such test, that the opulent would arrogate an undue influence inconsistent with liberty. The test is justified, not as preclusive of a dangerous equality, but because it restores, to those that are independent, their equality of suffrage. The question which Blackstone has thus determined, is decided differently by a judge in India. Sir William Jones has asserted the expediency, as well as the right of universal suffrage, nor is that accomplished, and celebrated scholar singular in a question agitated so variously by the ablest politicians. While the principle has ever been acknowledged in theory, the expediency of universal suffrage has been determined, in the negative by Mr. Fox, in the affirmative publickly, in resolutions issued from such a convention as the present, by his oponent Mr. Pitt.

[Page]But to what purpose do I quote these passages, or appeal to the authority of these distinguished names? To demonstrate to your lordships, that universal suffrage and annual parliaments, the professed object of the British Convention, are legitimate and constitutional objects of pursuit. It is to convince your lordships that these objects are strictly constitutional, and acknowledged in theory; and that their expediency in practice is the only question. But, my lord, this is a question to be debated between man and man, a question fit for discussion in the House of Commons, not for the cognizance of a court of law. It is a question on which the wisest and the greatest have differed, but let it not be told in England, that universal suffrage, a principle essential in the theory of its constitution, has been arraigned as seditious, and proscribed as unconstitutional, in a Scottish Court.

Such then, my lord, were the professed principles, and such the ostensible objects of the British Convention. It remains to examine the mode proposed, or the measures adopted, to accomplish these legal constitutional objects; but in the speeches and resolutions, charged as seditious in this indictment, what is there to indicate that the secret motives of the convention were different, that its designs were criminal, or as the public prosecutor has hardly asserted, that a plan was deliberately formed 'o subvert the constitution? I shall examine, my lord, as concisely as possible, the resolutions and speeches contained in the indictment.

The first is a speech extracted from the Gazetteer, and ascribed to Mr. Gerrald, in the British Convention. My lord, I affirm that this speech is legal and constitutional throughout, and perfectly conformable to the professed object of that association. It begins by stating, that after the union of the crowns, on the accession of James to the throne of England, ‘the people of both countries, were dep [...]ed of some of their most valuable privileges.’ And who will deny, that during the sanguinary reign of the Stuarts, the most dangerous encroachments were made on our liberties? Who will maintain that the privileges of the people were not then invaded; privileges which, in some instances, the revolution has not entirely restored? But the speech proceeds to establish universal suffrage, not only as our birth-right by nature, but as a right actually enjoyed under the Saxon government, and exercised from the Norman Conquest or Robbery, (a rob [...]ery, my lord, it undoubtedly was) abridged the inheritance of our [...]xon ancestors. To restore this natural right, to recover this inherent principle, as it is termed, of our constitution, it proposes the most peaceable and legal means, that the people should be instructed in its importance, and persuaded to solicit its restitution by petitions to parliament. My lord, this is not the language of sedition, but an assertion of our unalienable right to petition either branch of the legislature. But there are passages supposed to indicate a different intention. The petitions were to be subscribed by a majority of the people, ‘by a number so respectable as to command attention; and [Page] it will soon have that respectability, if we have reason on our side.’ On this invidious construction, my brother and my friend has sufficiently commented. Were command (than which I know not a happier phrase) expressive of a compulsive force to overawe the legislature, its correlative would be obey; but here the attention which truth and numbers may be figuratively said to command or enforce, and which certainly they strongly solicit, is yielded by parliament, whose attention cannot be said to obey.

The next article of the indictment discloses the grand arcana of sedition; the resolution ascribed to the convention of resisting the authority of the legislature, concerning which I shall first examine its import, and then its criminal amount and complexion. I must premise, however, that in a case like the present, wherever a declaration is equally susceptible of two construction, that which is innocent is to be received as its genuine interpretation and sense. Your lordships may remember the trial of Lord Strafford. An accusatian against him was, that he said in the public ball at York ‘that the little finger of prerogative should lie heavier upon them than the loins of the law.' By inverting the expression thus, that 'the little finger of the law was heavier than the loins of prerogative,’ he fairly explained it away. The Commons persisted in this accusation; but their illiberal construction of a sentence susceptible of a different meaning, has been reprobated by every historian as oppressive and illegal. If words, therefore can abmit of two constructions, that which is most favourable to innocence must always be adopted.

My lord, to proceed to the resolution, the first part of it states, in general, That ‘if any unconstitutional act be proposed in parliament, inconsistent with, or subversive of, our known constitutional liberties, we declare, before God and the world, that we shall follow the wholesome example of former times, by paying no regard to any act which shall militate against the constitution of the country; and shall continue to assemble, and consider of the best means by which we can accomplish a real representation of the people, and annual election, until compelled to desist by superior force.’ What is the import, then, of following 'the wholesome example of former times?' They meant, it is said, to fly in the face of all constituted authority, and to resist the government. But is this the wholesome example of former times? No, this is not the case; for the expression is immediately explained by the context, ‘by paying no regard to any act which'—shall do what? 'Which shall militate against the constitution of this country;’ and how disregard it? Not by active and forcible resistance; but with all the resignation of a quaker; by that passive resistance which a quaker would shew, were he to enter the Court, and remain with his head covered, till your lordships macer should take off his hat. He submits passively to the laws of his country, when exerted, to which, at the same time, he pays no previous regard. But the resolution amounts to this, that the members associated, or delegated, to obtain universal suffrage and annual parliaments, [Page] on the first notice of a bill to suppress their convention and to frustrate these their constitutional objects, shall assemble immediately, nor depart till the law, in the event of its being enacted, shall receive its full operation on them. They assemble on the first notice of the bill, for this obvious reason, that no meeting could take place when it passed into a law. They assemble to depreciate, and, by every legal endeavour, to prevent its passing. But they will continue to assemble till compelled to desist by superior force. To discover the criminal nature of this passive resistance, of this resolution to obey upon compulsion only, let us suppose, for a moment, that an act obviously unconstitutional were adopted by legislature; that monarchy, no matter how improbable, were abrogated forever, what would be the conduct of every peaceable citizen interested in its support? I would appeal to your lordships, sworn as you are to abide by monarchy, that you would resist, passively at least, though not perhaps forcibly, that act which you thought unconstitutional, and continue to meet in Court, by regal authority, 'till compelled to desist by superior force.' Such would undoubtedly be your lordship's conduct, and such is the precise conduct which the convention observed. Their ideas of resistance, their resolution not to desist till compelled by superior force, are explained, and the extent of both ascertained, by the compulsion in consequence of which they desisted, and the force by which they were actually dispersed. Their resolution was not to resist; it was to desist till compelled by force; and when my friend Mr. Davidson, the sheriff, laid hold of the president's arm, to remove him from the chair, 'No, Sir,' says the president, ‘this is not force enough; a little more if you please;’ accordingly the sheriff, by a very gentle exertion, removed him from the chair. The whole was a scenic exhibition; and truly, my lord, where the force was so ludicrous, a resolution not to desist till such force was exerted, can never be criminal.

My lord, the resolution proceeds, ‘and in ease of an invasion to reassemble in convention.’ The construction imposed upon this is, that the convention meant to join, or assist the invaders. My explanation is very different, that it was the intention of the members, by every effort in their power, to resist an invasion. The resolution concludes thus, ‘that all, or any one of these calamitous circumstances,’ (and an invasion is one of the preceding circumstances,) 'shall be a signal for the members to meet in convention.' But why calamitus, if they did not confider it really as such? If they did not mean to avert that calamity, why represent it to the people or to themselves, as a most calamitous circumstance? Can any thing more explicitly point out their intention? Or when the whole resolution is considered, can your lordships impose any other construction than this upon it, that the intention of the members was, by every exertion, to avert that which they justly represented as a national calamity.

Now, my lord, having determined the sense and import, let us [Page] examine the criminal amount of a resolution considered as so alarming and dangerous, that the constitution, in the opinion of some wise men, totters already to its very foundation. A refusal to yield an implicit, uncompelled obedience, to an act whose existence is only potential, on the supposition too of its proving an unconstitutional act, is charged to-day as a direct attack on the authority of the legislature, constituting a species of real and atrocious sedition. To impugn the authority of the three estates, or to attempt a diminution of their power or dignity, was, by 1584, chap. 130, declared to be treason; and the prosecutor maintains an argument sustained by your lordships on a former trial, that although the act is superseded by the introduction of the English statutes respecting treason, the offence that ceases to be treasonable, must still subsist as sedition at common law. My lord, let me explain the origin of this act, whose very abrogation, it seems, is productive of a new species of sedition. It was obtained by James VI. to preserve the ecclesiastical estate, or rather the episcopal power, in parliament, then in danger of being subverted by the efforts of our presbyterian ancestors. The dignity of the estates might be variously impugned, by violence, by publications and speeches, or by resolutions in parliament. A variety of inferior offences, or of actions in themselves indifferent, were therefore converted by this act into treason. But these offences, when the act was abolished, were again restored to their primitive state. Popular commotions directed against an estate of parliament, would return as formerly to real sedition; speeches, or publications, derogatory to either of the three estates, to their original situation as verbal sedition. By the act immediately preceeding this statute, to decline the authority of the counsel was treason, but how absurd to maintain, that because the act is abolished, the offence, originally a contempt of court, subsists at common law as a species of real, and atrocious sedition? I conclude, therefore, that the various offences comprehended i [...] this act, must revert to their original situation at common law, like him whose patent of nobility is forfeited, and whose descendants return to the common herd of mankind.

But, my lord, I do not like this act, nor its introduction in this trial. And I will tell you why. The Earl of Arguyle was arraigned on this statute, and convicted of treason because he bestowed an explanation of his own on a religious test, prescribed by parliament, whose authority he thus invaded, and whose power he impugned. But this conviction dishonoured the justice of the nation, and the act itself, instead of being superseded by the English law, was abrogated previously by our Claim of Right, or rather declared to have been an obsolete and dead statute at the very time he wa tried. The Claim of Rights declare, that James VII. had forfeited his right to the crown, among other things, ‘by causing pursue, and for [...]ault several persons upon stretches of old and obsolete [Page] laws, upon frivolous and weak pretences, upon lame and defective probation, as particularly the late Earl of Arguyle, to the scandal and reproach of the justice of the nation.’ Thus the Earl of Arguyle, to the reproach of justice, was condemned on the stretch of an obsolete law. But in this enlightened period, the gentleman at the bar, more unfortunate even than the Earl of Arguyle, is to be convicted of a crime that has survived this old and obsolete act; an unknown sedition that springs like a phenix from the embers of treason. Arguyle was convicted, because he impugned an existing law, but my client is arraigned, because be impugns an act whose existence as yet is entirely potential. But, my lord, the offences accumulated on the British Convention, must return to that situation which they held before this obsolete statute was enacted; commotions to real, publications and speeches to verbal sedition.

Not to exhaust your lordships patience, I shall observe of the speech that succeeds this resolution, and of the convention of emergency, that the first, by enumerating the restraints imposed by a Convention Bill on the right of petitioning, coincides exactly with the interpretation bestowed on the preceding resolution; that the convention, by constitutional means, would endeavour to prevent the introduction of a law to intercept their petitions, and to frustrate the ultimate attainment of their objects. As to the other, it was natural for the convention, in the event of their dispersion in one country, (which, as their objects were constitutional they must have considered as illegal,) to provide secretly and beforehand, for re-assembling in another, beyond the jurisdiction of the sheriff by whom they were dispersed. School boys, when dispersed in one parish, will repair privately to the adjoining, where they may renew their bickerings without molestation.

But what is the amount of this, and of every other article contained in the indictment. Their French epithets, used perhaps foolishly, their resolutions, and their speeches indicate, it is said a design to subvert the constitution or government. The Solicitor General undertakes to prove that a plan was formed to subvert the constitution. Let me tell him, that his evidence will not, and cannot exceed the indictment, that ‘the whole form and manner of their procedure, as well as the principles they avowed and propagated, clearly, and unequivocally demonstrate that their purposes were of the most dangerous and destructive tendency, hostile to the peace and happiness, and tending to subvert the constitution of this realm.’ Their principles, and the tenor of their procedure is the only evidence from which a plan to subvert the constitution is inferred. But if such a conspiracy were formed, if such a design was entertained, it amounts to treason, and should be tried as such. But a charge of treason, let me tell your lordship, cannot, and dare not be maintained; not that a concerted design to subvert the constitution, is not an overt act tantamount to treason, [Page] but because there is no legal proof, nor any evidence whatever, to establish that design. The testimony of two concurrent witnesses, whether in treason or misprison of treason, is essential to conviction; but here, I repeat it again, there is no witness▪ and under the present indictment none can be adduced, to prove a conspiracy to subvert the state. Sedition therefore is charged to-day, and the crime is to be established, not by legal evidence, not by the testimony requisite in treason, but by inferences from resolutions, by inuendos capriciously attached to speeches, either innocent in themselves, or, if criminal, constituting a very different offence. A design to subvert the constitution, if susceptible of proof, would amount to treason. Speeches and resolutions are punishable only as verbal sedition, But an intermediate crime, a constructive species of sedition is created; and from speeches amounting only in themselves to leasing-making, a n [...]w crime, incapable of proof, and unknown in law, is extorted by inference. The tendency, which alone is criminal in these speeches, is not submitted to the consideration of the jury; but the supposed motive from which they originated, are to be converted by an arbitrary and capricious inference, an inference necessarily influenced by fear, prejudice, and passion, into constructive sedition. My lord, I affirm that this is subversive of all judicial procedure. Constructive treasons are now no more; but a crime against the state may still, it seems, be established by construction, and that which constitutes in itself an inferior offence, be rendered the evidence of this constructive crime. In the unjust, and ever memorable trial of Algernon Sidney, inuendos from his writings composed the chief evidence, but Sir John Hawles justly remarks, that, ‘as this indictment was an original in the particulars before mentioned, so it was a second of an inuendo indictment of treason; Fitzbarris was the first. The prosecutor against Car, as I remember, was an information, and judgment arrested after a verdict, because it was by inuendo, of which no precedent could be produced, and although in actions, for words it was not permitted, yet in criminal matters, being penal, it was resolved it ought not to be permitted, and certainly much less in treason.’ In criminal matters, no inuendo is therefore admissible, much less in treason. My lord, our own practice corresponds with this. Oliphant and others accused of drinking the pretender's health in public, 'with an intention of abetting his claim to the crown,' were tried and convicted of verbal sedition. The tendency of their speeches to excite disturbance constituted their sole offence; but the treasonable intention inferred from their speeches, of abetting the pretender's claim to the crown, was not then charged, as a constructive species of real sedition.

My lord, an authority occurs on this subject, not usual in a Court of Justice, yet so opposite, that I shall quote it without hesitation. It is the Monthly Review for February, wherein a pamphlet is reviewed, the composition of a Mr. Playfair, a man whom I know not, but who exhorts the nation to wage an eternal war. Mr. Playfair [Page] asserts that ‘it is only a matter of regret, that those who undermine our government cannot be treated a la Francoise, since it is the French system that they have taken for their model.’ What say the reviewers to this humane proposal? Their honest indignation breaks forth in a stream of argument and eloquence: ‘A powerful stream of the milk of human kindness flows through this sentiment of regret that the guilotine cannot be set to work in this country, on those who do—what? Betray their country? No; for they are already liable to the penalties of treason, and to a death infinitely more painful than that which is produced by the guilotine. Who adhere to the king's enemies? No; for they are in the same predicament. Who by overt acts attempt to overturn our government? No; for that also is treason. Whose heads then are those which the national razor should shave in England, if the pious wish of Mr. Playfair could have effect? The heads of those who undermine our government: an expression not known in our law, and of course not to be found in the index of the criminal code.’

Had these reviewers directed their eyes to Scotland, they would have seen, that, to undermine the government, though, under that denomination, unknown in law, nor to be found in the index of our criminal code, is created by implication a crime against the state. They would see that the most iniquitous attainders of former times, might have been converted into a capital, though inferior crime. Sidney and Strafford were both convicted, though at different periods, of constructive treason. But Sidney, though unjustly attained, might have been condemned for sedition, on those inuendos derived from his writings, which in treason were not admissible as legal evidence. Strafford too, if his sentence was iniquitous, might have been legally convicted of constructive sedition; and if this crime has a legal existence, these men might have perished unlamented on the scaffold. Strafford was accused, and on constructive evidence, of an endeavour to subvert the fundamental laws; a crime on which the statute of treasons was totally silent. Arbitrarily to introduce it into the fatal catalogue was, in itself, according to historians, a subversion of all law. But wherein does this differ from the charge against my client of a design to subvert the constitution and government? Where has this law lain so long concealed, that it now bursts forth to the destruction of this innocent man? Where is the precedent for this unknown law, or the landmark by which he could discover its existence? It is sufficient for his protection, or for our security, that this new crime of subverting government is prosecuted, not as treason, but sedition? Or is this new law less a snare to the unwary, because the capital punishment attached to sedition, may be restricted by the humanity of Court, to whatever arbitrary punishment the Court may impose? Must he suffer for a crime that had no existence before, by a law created for the occasion, that may burst at last on our own heads, and involve us in its ruins? My lord, let the speeches, if criminal, be punished as such; but let not a constructive [Page] species of guilt be deduced by inference from these speeches, nor a crime established that is unknown in law.

These speeches, if criminal, are comprehended, as my brother has already demonstrated, under the acts 1584, chap. 134, and 1585, chap. 10, on which I maintain, as my second proposition, that where the offence is provided for by statute, a severer or a different punishment cannot be inflicted at common law. To establish this proposition will not require any long deduction. Nor would I condescend to an argument on a proposition almost intuitive, but for an opinion delivered on a former trial, that where the indictment is founded, and sedition charged, on the common law, the Court are precluded from resorting to statutes. My lord, the common law is a collection of usages, the origin of which is uncertain, but of which the existence is preserved by tradition. The statute, is a superaddition to the common law; declaratory either of its meaning, or remedial of its imperfections. If declaratory, it ascertains precisely what the common law is; nor can your lordship, in your interpretations of the common law, travel beyond the limits prescribed by statute. Again, if remedial, it either enlarges and supplies the deficiencies, or corrects the luxuriance, by retrenching the superfluous excess of the common law. Remedial statutes are therefore again divided into the law of England, into statutes enlarging and restraining the common law. As an enlarging statute inflicts a greater penalty than was otherwise competent, the crime, as in stealing from bleachfields, and other statutory thefts, may, from motives of humanity, be charged at common law, to the effect of inflicting the inferior punishment. Thus, in England, as a misprision is contained in every felony, it is held that the indictment may proceed on the lesser offence. But a restraining statute limits the penalty formerly competent; nor can a severer punishment be inflicted at common law, than that to which the restraining act has already reduced it. A different punishment cannot even be inflicted; for the judge, whose hands are thus tied up, has no power to deviate from the statute. Otherwise the consequences would be most dangerous; the effect of the statute would be entirely frustrated; the law would depend on the passions, the caprice, or the interest of the man who prosecutes, the punishment on the discretion of the judge who pronounces the sentence.

But the punishment, as regulated by 1703, chap. 4, is fining, imprisonment, or banishment, meaning thereby banishment forth of the realm alone. This is the third proposition, which I proposed to illustrate. The argument maintained for the crown is this, that banishment by the mode of transportation is prohibited neither by the spirit nor the letter of the act; that the spirit, as expressed in the preamble, meant only to abrogate confiscation and capital punishments, the letter to specify the most usual arbitrary punishments as then understood; and it is asked with an air of triumph, who will say that, by banishment the Court was limited to [Page] the inferior of two modes of punishment comprehended under that generic term?

My lord, the statute itself shall refutes this argument. The preamble recites, that from their generality, and the various constructions of which they are susceptible, the laws against leasing-making, (which are previously enumerated) as inferring death and confiscation, may be of dangerous consequences, and the enacting clause proceeds accordingly to abrogate the punishments of confiscation and death. So far the supposed spirit, and the letter are consistent. But the enacting clause goes farther, not merely to specify the arbitrary punishments usually employed, but as a restraining statute, to limit these to an alternative penalty, to banishment, or imprisonment, or a fine, or on the inability of the party to discharge a fine, to a corporal punishment mitigated, and expressly limited to the preservation of life and limb. Your lordships will therefore observe, that the statute extends farther than the supposed spirit ascribed to the preamble. A fine may be inflicted, banishment may be inflicted, or imprisonment inflicted; but these penalties cannot be accumulated, nor corporal punishment superadded to banishment, or indeed inflicted, unless on the alternative of the party being poor and unable to pay a fine. The spirit therefore, ascribed to the preamble is contradicted by the letter of this restraining statute, restrictive even as to that alternative punishment with which it entrusts your lordships. The question therefore is, what is the meaning of the term banishment in the act of Queen Anne?

And on this question, the argument from the act 1609, so fully illustrated by my brother, is to me decisive. I hold, that the banishment prescribed by that statute is from Scotland alone; as transportation, a punishment unknown when it passed, was not then in the contemplation of the legislature. This statute is the last enumerated in the act of Queen Anne, wherein the epithet banishment occurs but once. Were transportation therefore, as implied in that generic epithet, to be inflicted under the other acts against leasing-making, then, this absurdity would take place, that banishment, though employed but once, has a double signification in the act of Queen Anne. If applied to 1609, it imports no more than exclusion from Scotland; but when applied to the other statutes which the same acts enumerates, it implies not only a seclusion from Scotland, but banishment beyond seas, transportation to the plantations, loss of liberty, and personal servitude. Corporal punishments are limited to the alternative of the party being unable to pay a fine: yet this greatest and most ignominious of corporal punishments is entrusted to your lordships as a mode of banishment. But, my lord, were banishment, as employed in the act of Queen Anne, an expression either disputable or doubtful, its precise import is thus ascertained. When the act 1609 was in the special contemplation, and underwent the revision of parliament, that signification which was [Page] implied, or that punishment which was prescribed, in banishment, must in dubio be presumed to have been affixed to the same word, when employed by parliament in the act of Queen Anne. If banishment, by the act 1609, be simple exile, or exclusion from the realm, there is no reason to suppose that it acquired the additional sense of transportation beyond seas, when that statute was revised by the act of Queen Anne.

To this argument, my lord, I have heard no answer, and I hold it decisive. But the act against wrongous imprisonment, and another of Charles II. inflicting banishment to the plantations on those who refused to depone against delinquents, have been preposterously quoted. The first, by banishing to the plantations, demonstrates, the solicitude of parliament to distinguish transportation, a punishment recently introduced, from simple banishment as understood at common law; in the other, an act against wrongous transportation, as well as wrongous imprisonment, the expression banishment is not once introduced.

But, my lord, if transportation, which I hold to be a punishment superadded to banishment, be a mode of banishment comprehended under that generic term, if under a statute, sanctioned merely by banishment, your lordships are intitled to inflict transportation; then, under a sentence of your lordships inflicting banishment, those to whom the execution of the laws is entrusted, would be entitled, equally with your lordships, to transport to the plantations the man whom your sentence has merely banished. My lord, the consequence follows inevitably from the argument, and my client, banished to-day by your lordships, may be transported to-morrow by the executive power.

But a case from the records of the Privy Council has been quoted as decisive. Baillie, a few months after the act of Queen Anne, was convicted of leasing-making, and condemned by the Privy Council, to be banished and transported, placed in the pillory, and adjudged infamous. I mean not to impugn the authority of a court of law, when I assert that this sentence was most unjust and illegal. The Privy Council was necessarily arbitrary, uniting the executive power to its judicial authority. The trials in that court were without jury, and the sentence was pronounced when the party was withdrawn. But a more illegal sentence than the one proposed to your lordships as a precedent, cannot be conceived. In every article it violates the act of Queen Anne. Banishment, or imprisonment, could only be inflicted alternatively, and corporal punishment, in the particular alternative of the party being poor and unable to pay a fine! But a gentleman certainly not too poor to discharge his fine, is declared infamous, a punishment which the statute has not authorized, and condemned to the pillory, a corporal punishment replete with infamy. Transportation, infamy, and the pillory are all accumulated on his unhappy head; and as if to refute the plea that transportation was an alternative mode of banishment, he is first banished from the kingdom, and then ordained to be transported [Page] to the plantations. But instead of the illegal sentence of a court abolished as oppressive and tyrannical, if your lordships regards the just and lenient decisions of your predecessors, what is the conclusion? That the spirit of the statute, as interpreted twelve years after its enactment, is mild and equitable, when offences not less henious than those in the indictment, committed too on the eve of rebellion, were so mercifully punished.

My lord, a reference has also been made to decisions recited on a former trial, to the effect of proving that in these cases, transportation was the mode in which banishment, the generic punishment, received execution. I observed that the sentences, as in the case of Rankin▪ were precisely to this effect: ‘The court adjudge the pannel to be banished forth of the realm, and ordain him to return to prison, and to be confined therein till occasion be had for his transportation to the plantations.’ We are told that the last part of this sentence is an explanation, declaratory of the first, and confinement, till an opportunity offer for transportation, as well as transportation itself, is interpreted as the mode in which banishment forth of the realm must receive execution. Now my lord, it appears to me that this inference is not logical; for banishment forth of one country, never can imply transportation to another. My explanation is this; transportation to the plantations, as inflicted in the latter part of the sentence, is supplemental, not declaratory; an additional part of the sentence of banishment forth of the realm; not explanatory of its meaning, or of the mode in which it was to be carried into execution. The crimes thus punished by transportation are immaterial: they were either capital, and mitigated to less than death, or offences of which the punishment is arbitrary and without controul; for thus without the intervention of statute, transportation was first introduced into our law.

With your lordships permission, there are yet two circumstances to which I shall advert; the motive or the expediency of the punishment which I deprecate, and its disproportion to the offence. The motive hitherto uniformly assigned for transportation is, that there is no security, nor advantage to be obtained, by banishing across the Tweed, those who will still disseminate their sedition in England. My lord, has England no laws for her own preservation, that she must be indebted for protection to the severe vigilence of a sister kingdom? Is it requisite that the laws of Scotland should interpose to prevent the future repetition of crimes in England? Sedition in Scotland is sufficiently repressed by expulsion from Scotland: but must England be secured by your sentence, even from the apprehensions of similar sedition? To prevent the future commission of crimes in England, you impose a punishment which, if the crimes were actually committed, the laws of that country would not authorize, and could not inflict. It is the spirit of true punishment to prevent the future, by exhibiting a corrective example of the past; not by inflicting the penalty previous to the apprehended crime. With us the offence as bailable does not amount to felony: in England it [Page] could not be punished with banishment. Why then inflict a punishment appropriated to felony, as preventive of a crime apprehended in England, a punishment which could not be inflicted in England, were the crime committed?

My lord, on this immense disproportion between the punishment and the offence, let me suggest a distinction which I am too much exhausted to illustrate.—Clarendon was banished, Barrington transported. Clarendon, when exiled by a vicious court and a venal monarch, lived abroad, to himself and to his country, to illustrate the annals of British story. Bollinbroke, though expelled for treason, lived to return, and in a corrupt age, to revive the flame of patriotism in every English breast. Atterbury, though in exile, and under discountenance, closed the honoured remainder of his life with dignity and in peace. But a man whose offence is inferior, whose abilities are equal, and his integrity, I am bold to say, superior to Bollinbroke's, whose genius may distinguish his name, and enrich the literature of his country, depends on your sentence—whether his future life shall be lost to society, himself doomed to a receptacle of vice and misery, and transported to a shore from which apparently there is no return. From the state of his health I must add, that a sentence of transportation is to him, in all human probability, a sentence of death.

Lord Henderland. My lord, the subject of our present consideration is not as to the guilt or the innocence of the pannel at the bar, but as to the relevancy of the libel; and, my lord, I shall be very short in what I have to say. It is certainly necessary to examine every criminal libel that comes before us, for crimes may be charged in a different way; a charge may be relevantly laid in one indictment and not in another; and, my lord, in a crime of this kind, which relates to a society, or convention, the views of which society may change very much, and the views of the members may be very different, men misled by folly, or misguided by faction, may have gone into meetings, into conventions of this kind, not aware of the views which they might have; not aware of the consequences which they might draw from it, may, at last, come to feel the hollow ground upon which they stood, the dangerous footing that they were upon, and the consequence of their guilt might be very various indeed; therefore it becomes me to examine this libel closely.

My lord, the question is, is it relevant or not? that is, do the facts charged in the minor proposition come up to the crime charged in the major proposition; that is all my province, I have nothing more to do with it.

My lord, this libel charges the crime of sedition, and the general import of the minor proposition is, that this person has been guilty, in so far, as he has been an active member in a seditious society; a society, or convention, that is charged in the libel to be seditious. With respect to the logical conclusion, there cannot [Page] be a doubt; for, I think, this proposition may be fairly assumed, that whoever is an active member of a seditious society is guilty of sedition: by active, I mean concurring in those measures which render and characterize that society to be a seditious one; but I should not be satisfied with an indictment laid in that way.

My lord, if an indictment was to charge murder in the major proposition, and in the minor proposition it was said to be, insomuch as he murdered such a man upon such a day, no doubt the conclusion would be logical; but I do not think it would be a fair one; because it is the duty of the public prosecutor to specify the particular circumstances. If it said he was guilty of murder, in so far as he murdered such a man, upon such a day, by running him through the body with a sword, of which he died in a few days after, that is a proper and a relevant libel. Suppose it were to say, in so far as he thrust such a person through the body with a sword upon such a day, of which wound he died, that would be a relevant libel; because, although the term murder, or the felonious intent is not repeated, it is, and must be the construction of law and common sense, unless he be able to set up a defence against it, and establish that it was done by accident, which, to be sure, would be a relevant defence.

Now, my lord, the capital object in every indictment, is to consider the facts specified in the minor proposition, and how far they come up to the general charge in the major proposition. We have heard a great deal about sedition, real and verbal; distinctions which are taken by systematic writers for perspicuity and clearness, but the true way to judge of sedition is to take it from the object before you, that is the fair way; for I can conceive verbal sedition as criminal, as dangerous as any that can be committed by actions. Suppose a man to run into the streets and call out ‘To arms! to arms! kingly power is useless; it is cumbersome, it ought to be laid aside. Parliament is venal and corrupt. Let us name a body of our own to assume the power which they have improperly taken. Rouse and assert your rights.’ Why, my lord, it may be said this is but words; but suppose he gets people to follow him, then, to be sure, if they proceed to overt acts, it would be rebellion, it would be treason; but suppose nobody follows him, is there no criminality? Is there no danger to society? Is there no injury to government if such proceedings are tolerated? Can any man doubt that this would be a sedition totally different from any thing that I can conceive with respect to leasing-making?

My lord, I hold it perfectly clear, taking that systematic distinction that authors assume for their conscience, that there is a sedition by words totally different and distinct in common sense and reason from leasing-making. My lord, in the same way the impugning the authority of parliament, or of any of the states, that is a crime that cannot be suffered; as long as parliaments exist they must be defended against it by [Page] the common principles of that government which they have assumed: it requires no statute, it requires no usage, it follows from the nature of the thing, that the impugning of that authority is a crime, and is the crime of sedition; and I care not whether it be merely in words, or whether it be followed by actions.

My lord, I lay out of the question the act 1584, which declared it to be punished as treason; but I say it is part of the common law, and, as was well expressed by the young gentleman who spoke on the part of the crown, must be part of the common law of every state, of every society, of every government that can exist in the world.

My lord, having said so much the question then is, whether there is any charge made against this society (for I shall first speak of the society) that amounts to this crime, setting at nought or impugning the authority of parliament? If there is, I am sorry to draw the conclusion, but I must draw it logically that this convention was a seditious meeting; and if this pannel which is the second question, shall appear to have been active in bringing about any such resolution, then I must hold him to be guilty of sedition. Now, my lord, I will not run through the whole of the argument, which has been long, and which has been ably and well descanted upon on both sides; I will say particularly so upon the part of the pannel; and, if it had not been on so serious an occasion, I should have had great pleasure in hearing these gentlemen display that ingenuity, that ability, and that force of reasoning which they have discovered in this cause; but, my lords, it is one thing to admire, and another to approve. My lord, I should be glad it were in my power to give a fair construction to that part of the indictment which I am now coming to. I think, if in the common sense of mankind it admitted of that construction, I am bound to give it; but I must explain according to the context, according to the nature and the plain sense of the object of the resolution. Now, gentlemen, the resolution that I allude to has been under our consideration before; you will take it in connection with the motion made by Mr. Callander, which is also recited in the indictment; and then comes this resolution: ‘That this convention considering the calamitous consequences of any act of the legislature,’ plainly referring to the Convention Bill which passed in Ireland, ‘which may tend to deprive the whole or any part of the people of their undoubted right to meet, either by themselves or by delegation, to discuss any matter relative to their common interest, whether of a public or a private nature, and holding the same to be totally inconsistent with the first principles and safety of society, and also subversive of our known and acknowledged constitutional liberties, do hereby declare before God and the world, that we shall follow the wholesome example of former times, by paying no regard to any act which shall militate against the constitution of our country.’ My lord, with respect to the opinion which they may form of this Convention Bill, that is one thing, or that any body may form of it; [Page] but to declare, by a solemn and deliberate resolution, that they have determined to pay no regard to an act of the legislature, but holding in contempt the authority of that legislature, I can put no other construction upon it; if the gentlemen of the jury can, they are at liberty to do it. I am sorry I am obliged to anticipate what may be the effect of their deliberation, but there is no help for it; I must give my own opinion in this case upon the charges before me, and I cannot after all the attention that I have given it put any other construction upon it, than that it was a seditious act, a seditious, deliberate declaration, to be held up by them to all their adherents, that an act of the legislature of this kingdom was to be set at nought.

Gentlemen, as to the particular activity of this pannel at the bar, you have his speeches. It may be said that a speech against the Convention Bill in Ireland is not sedition in this country, because Ireland is a foreign country; but you are to take what he says, with respect to that bill, in connection with the resolution which he means to support; and you are to take into your consideration what he says in another part of his speech: ‘When I saw the calm, deliberate countenances of all present, and the solemn manner in which it was passed, I was convinced that it would not only be a resolution of words, but a rule of action.’ This, at least, to push it no further, shews his conduct and his activity in this resolution, which I must, in sound construction of common sense, consider as sedition.

Gentlemen, I will not run over the different proceedings of this convention;—they divided themselves into sections, departments, and so on.—They also had sittings, committees of organization, instruction, and finance; and, taking those into consideration, I am at a loss to find out the necessity of such a form of governnment, if they only intended to petition parliament.

My lords, that resolution is against the common law of the country, and it is expressly against the statute 1584; and what shews the difference between that and leasing-making is this, that in the very same parliament, or the next, there is an act about leasing-making; and what occasion could there be for that act if they were not different the one from the other? I have heard it said by an honourable and ingenious gentleman who has argued this case, that this act was abolished at the Revolution, because the Earl of Arguyle's trial, which perhaps in part proceeded upon these acts, was said to proceed upon old and obsolete laws. It does not proceed upon old and obsolete laws. Now, gentlemen, you all see how far this was abolished; one of the first acts of the Convention Parliament is to make it high treason to impugn the authority of the Convention of Estates; but do they say that this necessary defence of the constitution, which renders the impugning the authority of parliament a crime at common law was to be left out? No; they knew better. They knew that government must be supported; and had a convention met at that time, and told this convention of the estates, ‘You have no power to make such a [Page] law, we will resist your authority,’ they might have been tried, under that statute, for endeavouring to resist their authority. And in Queen Anne's first parliament, within four acts of the act 1703, of which we have heard so much, is just the same thing as was done in the convention parliament: ‘Our soveraine lady, the queen's majestie, with advice and consent of the estates of the kingdom presently assembled in parliament, enacts, statutes, and declares, that the meeting of parliament now convened," &c. 'is a lawful and free meeting of parliament, for the ends therein mentioned. And farder, in pursuance of the first act of the first session of this parliament, and without any derogation thereto, it is declared, that it shall be high treason for any person to disown, quarrel, or impugn the dignity of this present meeting of parliament, upon any pretence whatsoever.' And in 1703, it is still stronger in the 'act ratifying the turning the meeting of the estates in the year 1689 into a parliament. Our soveraine lady, with advice and consent of the estates of parliament, ratifies, approves, and perpetually confirms, the first act of King William and Queen Marie's parliament, dated the 5th June 1689, entitled an act declaring the meeting of the estates to be a parliament, and of new enacts and declares, that the three estates then met together, the said 5th of June, 1689, consisting of noblemen, barrons, and burrows, were a lawful and free parliament: And it declared, that it shall be high treason for any person to disown, quarrel, or impugn the dignity and authority of the said parliament. And farder, the queen's majestie, with consent foresaid, statutes and declares, that it shall be high treason in any of the subjects of this kingdom to quarrel, impugn, or endeavour, by writing malicious and advised speaking, or other open act or deed, to alter or innovate the Claim of Right, or any article thereof.’ This is the very act immediately preceding that against leasing-makers; and when I see these principles of just government prevail among our ancestors, shall I believe that the impugning the authority of parliament, the dignity of parliament, and its authority, should be punished as simple sedition? Why, it is impossible for me to believe it when I read this act.—It cannot fall under the leasing-making statutes; it is quite a different thing.—It is arranged in the law books under the head of treason, but still it was sedition before, punishable from the nature of the thing at common law; and if it is not high treason in England, it remains sedition in Scotland, and punishable at common law as such.

I do not mean to enter into any argument upon the subject of transportation; but I have a strong suspicion in my own mind, from various parts of Sir George Mackenzie, that he does not so much as mention the word transportation in all his book, though long after the practice of transportation had come in; and I do not say any thing upon this occasion that is not found. The crime here charged is not leasing-making, it is sedition, in the proper sense of the word, sedition at common law. I will not compare the constitution [Page] of this country to that of England, because I am unacquainted with it. I am not sufficiently acquainted with their manners, their genius, their temper; but if we are not entitled to punish, at common law, the crime of sedition, I know not what we are entitled to punish. The crime may not apply to the pannel; he may be able to state a defence to take it off, or prove circumstances that may satisfy a jury. It is the province of the jury to judge of the intent, and every circumstance relating to it; and it is my duty to declare, that it is my opinion, that this man ought to be committed to the knowledge of an assize.—I have examined this matter with great care, and with anxious care, that I might not do injustice to him on the one hand, and, on the other, that I might do my duty. Upon the whole, I think it was such an intention to resist the legislature of the country, and to bring its power in question, that, in my opinion, I cannot but commit this libel to the knowledge of an assize, in order for them to judge of its criminality; and I am sure they will act with the same candor, and take the same pains that I have done.

Lord Eskgrove. My lord, the subject of our consideration is not whether this pannel is guilty or not, but as no man, by the laws of this country, is put upon his trial before a jury, till the Court have given their opinion that the facts charged will make out the crime laid, it is our business to consider whether the facts charged in the minor proposition do, if proved, amount to the length of shewing that this person, accused, has committed the crime of sedition. My lord, I have no difficulty in giving my opinion, that the major proposition is relevantly laid.—It is usual and proper for the prosecutor to set forth particularly the different facts, from which he infers the actual commission of a crime, or the intention with which these facts have been committed. It is here stated, that there was a felonious seditious intention, and that such and such circumstances occurred, from which that intention is inferred. It is stated, that there was an illegal association and meeting, which assumed the name of ‘The British Convention of the Delegates of the People, associated to obtain Universal Suffrage and Annual Parliaments.'—And my lord, it says, that they 'did, in the whole form and manner of their procedure, as well as in the principles they avowed and propagated, clearly and unequivocally demonstrate, that their purposes were of the most dangerous and destructive tendency, hostile to the peace and happiness, and tending to subvert the constitution.’ That is undoubtedly a relevant charge, if the prosecutor can prove it. Then it goes on to state, that they imitated ‘the Convention of France, the public avowed enemies of this country, with whom Great Britain then was, and still is at war.’ My lord, I agree with what one gentleman said, that the use of French words and French terms in this manner, might at one time appear merely as signs of folly, and at another it might appear to admit of another construction; but if you attend to it you will observe it is imitating a body of men with whom we are at war, and who [Page] have rendered themselves objects of horror throughout all Europe. I would be glad to know what could be the meaning of having primary assemblies, departments, and so on, unless they meant to form a sort of legislative body among themselves; and to what end their deliberations were to be applied, we are to judge upon the subsequent facts in this indictment, and upon them alone; namely, the resolution which they took, and the plan which they were pursuing, they were endeavouring to obtain universal suffrage and annual parliaments. My lord, as to universal suffrage, so far as I know, I never heard that it had obtained in the British Constitution, or that it can obtain without overthrowing the constitution; and therefore, though it may be lawful to obtain a change, yet if it is a change of that sort, it goes to shew that it was not their intention to improve the constitution, but to subvert and overthrow it; for it is that which I never heard obtained in the constitution at the happy aera of the Revolution. My lord, they thought it necessary that they should have a convention;—a pretty thing in this country—a convention; not a convention of men coming together merely, but they were the representatives elected by others; and, my lord, this is thought so important a matter, that they are afraid of any thing happening to prevent their meetings, and therefore here follows, in this libel, a resolution, that if an act should pass to prevent meetings of conventions they were determined to resist it. My lord, the libel sets forth this resolution:

‘That this convention, considering the calamitous consequences of any act of the legislature which may tend to deprive the whole, or any part of the people, of their undoubted right to meet, either by themselves or by delegation, to discuss any matter, relative to their common interest, whether of a public or private nature, and holding the same to be totally inconsistent with the first principles and safety of society, and also subversive of our known and acknowledged constitutional liberties, do hereby declare, before God and the world, that we shall follow the wholesome example of former times, by paying no regard to any act which shall militate against the constitution of our country; and shall continue to assemble, and consider of the best means by which we can accomplish a real representation of the people, and annual election, until compelled to desist by superior force.’

Now, my lord, this determination, if words are plain, is a resolution not to disobey a law already made, but to disobey a law which they expected to pass when it should pass; and when there is any notice given of it, then there is to be a secret convention assembled; that secret convention to declare their sittings permanent, after the manner of the French Convention, and they are to continue to sit till they are compelled to desist by superior force. And, in the twelfth page of the libel, it is stated that this pannel, at the end of a long speech, immediately after this resolution, told them, ‘and though by some it may be thought a bold, by some a daring measure, yet [Page] it will be found the best for securing the peace of our country; for, if such a law were suffered to pass, if men were not allowed to utter their complaints, a number of fierce and rancorous passions would arise, and we would seek to appeal to that last terrible decision, the event of which is uncertain, but which God and nature allows.’

‘If the servility of the people had been less; if they had dared to meet, and, in place of murmuring, to have told their rulers that there was danger in seeking to deprive them of their liberties, we would not have to adopt this resolution to-night; but, when I saw the calm deliberate countenances of all present, and the solemn manner in which it was passed. I was convinced that it would not only be a resolution of words, but a rule of action.’

My lord, I must confess that I can put but one construction upon these words; that they meant to appeal to the terrible decision of the sword. My lord, I shall add no more upon the general relevancy of this charge; I am clearly of opinion that this is sedition, and sedition of the most aggravated nature. My lord, much has been said of real sedition and verbal sedition; some gentlemen seem to think that there can be no such thing as real sedition, for that it would amount to treason. But, my lord, supposing a man to have wrote a paper saying, I propose you shall meet in convention, and you shall have primary assemblies, and shall resolve to resist any law that may pass to disperse them, why, that would be exciting sedition; but here is a body of men actually met together, a combination and conspiracy of a hundred, or a hundred and fifty people, in the form of a convention of delegates, resolving to resist the government established by law.

My lord, I am clearly of opinion, that that species of offence, call it sedition or what you will, I call it the greatest of all sedition, would have been punishable by the acts of parliament already spoken to by my brother; and I have no doubt that this resolution to oppose the authority of the legislature, to prevent them from making laws, or disobeying those laws when made, is a resolution and a conduct that would have been punishable capitally in former times, and is punishable independent of all the acts regarding leasing-making, or what I call calumny of the king and his ministers. But, my lord, it is not only this resolution that I call sedition, but there is another thing, your lordship will observe what is said in one of the speeches of this gentleman, set forth in this libel. ‘Let us then endeavour to instruct the people in their rights, and to inform them of our views and our intentions.’ Your lordship sees they were to instruct the people, and teach them their principles, to inform the country of what their principles and doctrines were, so that, if their principles were had, leasing making is a much inferior species of offence than this.

[Page]In the last place, as to what your lordship may propose (if the libel be proven) as a punishment, your lordships have given your opinions on a former occasion, that there is no law [...]ining o [...] from inflicting banishment by the mode of transportation. If I had had any difficulty before, I own, an authority quoted this day by Mr. Solicitor General would at once have done away every hesitation upon the subject. Your lordship heard the authority of a judgment of the privy council, which was read upon a libel, laid upon this very act of parliament, and pronounced by judges who were sitting (no doubt most of them) in parliament at the time that act was passed; and therefore, I think there can be no doubt that your lordships are authorized to sentence to banishment by transportation. One of the gentlemen said, that the act of 1703 made it an alternative punishment, either banishment, fine, or imprisonment; but, my lord, the men who drank the pretender's health were condemned to fine, to imprisonment, and also the disqualifications of office, and therefore it was by no means confined to any one of them. I am of opinion, in this case, that your lordship should find the libel relevant to infer the pains of law which is restricted to an arbitrary punishment.

Lord Swinton. My lord, the question now under the consideration of this court is as to the relevancy of this libel. My lords, in the short time that I have sat here as judge, three of these cases have occurred; Muir, Skirving, and Margarot. In each of them I gave my opinion upon the relevancy, as also upon the punishment, and it is very disagreeable to go over the same ground again, especially when gentlemen of more abilities than myself have already done it; for that reason I shall be exceedingly short, and only go to where I think the essence of the crime lies.

My lord, the crime charged in the major proposition is, in general, sedition. The facts charged in the minor proposition amount, in my opinion, to this, to a charge of a seditious conspiracy to overturn the established government, the happy government of this country, by force and outrage, if it cannot be done otherwise. I say it amounts to a seditious conspiracy to overturn the constitution by force and outrage, if it cannot be done otherwise.

My lord, whether these facts are relevant to infer the pains of law, needs very little consideration. My lord, that it is a sedit [...]ous conspiracy to overturn the constitution, one need only read the aim and intention of this British Convention, as it is called, ‘the British Convention of Delegates of the People, associated to obtain Universal Suffrage and Annual Parliaments.’ The gentlemen who have appeared, and displayed so much ability for the pannel, have taken a great deal of pains to fritter down what is meant by universal suffrage. My lords, I maintain that it is not only inconsistent with the British Constitution, but inconsistent with every [Page] constitution or government that ever did exist, or ever can exist, that every mortal who has arms, and legs, and head, (and we are all equal,—all of like passions and like judgments with one another, that every one of them shall have equal suffrage. In what? Not only in the election of legislators, but of magistrates, of ministers, and of judges too. Universal suffrage, according to their meaning, is a suffrage to rejudge what judges may do; also to judge whether they will obey an act of parliament or not, and whether the acts of these annual parliaments are agreeable to their mind or not. I will tell you what,—annual parliaments are inconsistent with any government at all; because, if these parliaments should pass an act which these universal suffragants disliked, they have a right, from nature, to meet and say this is a wrong act—we did chuse these people, but they have gone contrary to our universal suffrage; and we have a right to rejudge them, and overturn what they have done. And I will give it you in the prisoner's own words, if it be true as charged in the libel, in his supposed speech. ‘If you appoint a man to act as your agent, and make his situation such that he has every temptation to betray you, without incurring the danger of being called to an account, the probability is, that he will sacrifice your interests to his own. It is therefore that a free suffrage of the people is what every man ought to desire, as that alone can make the interest of the representative and his constituents the same.'—Now, mark this, 'The great art of government, I apprehend, is this, that all should be governed by all.’ That is to say, that the whole of the suffragants, the whole voters, shall be governed by the whole voters.—What is this but saying, that the mob shall be governed by the mob, the multitude shall be governed by the multitude?—Who would be chose a judge by such governors? Because they would rejudge him.—There has been one instance in France, where the revolutionary tribunal and the jury, having found that the people were innocent, these suffragants, these general voters thought the judges did wrong, and they judged them over again; and, if the account we have be true, every one of them were carried to the lamp-post. So the plan is, that there should be an appeal from the guillotine to the lamp-post; that is the plan of this universal government. He says, ‘Were all mankind to assemble in public meetings, one of two things must follow, either they will behave properly or improperly; if properly, their meetings will tend to do good, if improperly, it carries its own cure along with it. The people will soon be brought into a better method by a sense of self-preservation, by which they will correct the errors into which they have fallen.’ That is to say, they would cut one another's throats, and the few that remained would see their folly. But, my lords, further, this motion of rejudging of every thing, and of the conduct of parliamant, is carried through the resolution which they came to, before God and the world, that if there should be any proposition [Page] for bringing into parliament a Convention Bill they would resist it. But, my lords, you need only to read these things; they do not need argument. I am therefore clearly of opinion that it is sedition; not only tending to overturn the British government, but every government; and that it is most surely relevant to infer the pains of law.

Lord Dunsinnan. My lords, the consideration of this very point was so lately before us, and the Court gave the same opinion which your lordships have now given, that I think it is unnecessary for me to say more, than that I think, in this case, as I did in that, that this indictment contains matter relevant to infer the crime of sedition.

Lord Abercrombie. My lords, the question which has has been so ably argued to-day is precisely the same that has been argued before your lordships in the former cases. And, my lord, in the first place, I am now, as I was then, decidedly of opinion, that no good objection, has been stated to the relevancy of this indictment. In the second place, I am of opinion, that the objection to the punishment of transportation, founded upon the act 1703, has no good foundation; and I think so for two reasons. In the first place, that it does not apply to the crime charged against the pannel. The crime charged against him is sedition, and sedition of the most aggravated nature. A man may be guilty of leasing-making without being guilty of sedition; and vice versa, he may be guilty of sedition without being guilty of leasing-making. In the next place, supposing that act to apply to this precise case, I am of opinion that the sole and whole purpose of that statute was to take away the punishment of death, leaving the power to inflict, according to the circumstances of the case, either simple banishment forth of the realm, or banishment by transportation.

My lord, it was said that upon looking into dictionaries, it appeared that banishment did not extend to transportation. But, my lord, every body knows that the same word may mean one thing in common language, and have a very different interpretation in a statute; for, to give an example, my lord, heir apparent, I believe, in the English language, signifies a person the oldest son of another during his father's life, as the Prince of Wales is heir apparent to the crown; but your lordship knows, that heir apparent in the statute law of Scotland has a very different interpretation; for by the law of Scotland, a man is not heir apparent to his father till his father be in the grave, and he may possess his estate for half a century in the character of heir apparent; and many other instances might be given. Even if we look into Johnson's Dictionary for the word transportation, he says it is banishment for felony. Your lordship sees, tha [...] even if we were at liberty strictly to adhere to the common forms, [...] speech, the argument would not hold good, I have not the [...] lest doubt that your lordships have a power to banish by transp [...] tation.

[Page]My lords, the learned counsel for the pannel, both of them concluded a very long and able argument, with a circumstance which I own I heard with regret, because I always regret any circumstance which in my mind tends to aggravate the guilt of a person standing in the unfortunate situation of the pannel. Both the one and the other of his learned counsel, in speaking of the punishment of transportation, stated that his case would be extremely hard, because he was a gentleman, a man who possessed talents, qualities, and virtues which would be useful and ornamental to society. My lord, I am very sorry that such a man should be in his situation, because if he should be convicted it aggravates his crime highly. Had he been a man ignorant and uninformed, it might have been some apology for his offence; and though such a man when he transgresses against the laws of his country must be punished, yet it would have been a good reason for inflicting the mildest punishment that we could consistently with our duty inflict; but, my lord, if such are the qualifications of the pannel now at your bar, so much the deeper and more aggravated is his guilt; for, my lord, we all know from the highest authority, that to whom much is given, of him much be required.

Lord Justice Clerk. My lords▪ when the question was before us this day week, the pannel applied for counsel, and I was very happy to hear that it coincided entirely with the opinion of all your lordships. My lords, I have attended with the greatest attention to all these questions of sedition, from the first of them down to the present day, and we heard similar questions upon the relevancy of Charles Sinclair's indictment discussed with great abilities at the bar, and also fully discussed by the court; and I do own, although I hope I am always open to conviction, in every question that comes before me, whether civil or criminal; yet I say I do own, that from the first to the last of these questions, I never, at any period, entertained two different sentiments. With respect to the first point, I am sure that much less than what is laid in the minor proposition would support the crime charged in the major proposition; and with respect to the judgment your lordships have given, I shall only say, that I am very clear we have full power to pronounce that sentence, and that we should not have done justice to the country if we had pronounced a smaller punishment upon any of those cases. I shall therefore not add any more, but that I concur with your lordships in the opinion that the libel is relevant to infer the pains of law.

Thursday March 13, 1794.

When the Court met, the interlocutor on the relevancy was read over, and the following gentlemen were chosen as Jurors:

David Deuchar, seal engraver, Edinburgh.

Peter Hill, bookseller there.

John Bell, bookseller, there.

James Hunter, merchant, there.

Andrew Miligen, watch-case-maker, there.

Sir William Forbes, Bart, banker, there▪

[Page]Peter Mathie, jeweller, there.

Alexander Gardner, jeweller, there.

William Creech, bookseller, there.

Thomas Hutchinson, merchant, there.

Mr. Gerrald. My lord, I object to Mr. William Creech; I understand he has repeatedly declared, in private conversations, that he would condemn any member of the British Convention, if he should be called to pass upon their assize; and I wish to refer it to his own conscience, and his oath, whether he has not prejudged the principles upon which I am to be tried.

Lord Henderland. My lord, the objection is, that he has prejudged the principles upon which Mr. Gerrald is to be tried; that he said he would condemn every member of the British Convention; it is stated in a loose way, it is not stated that he said he would do so whether they were guilty or not; I cannot see that it is a relevant objection; if he had said, he would condemn them whether they were guilty or not, it would have been a good objection, but at present it is too generally laid.

Lord Eskgrove. If the allegation had been, that Mr. Creech had said he would convict Mr. Gerrald, right or wrong, the objection would be good; but if it was only in common conversation that he had such an opinion of the intentions of the British Convention, it is not a good objection.

Lord Swinton. I am of the same opinion.

Lord Dunsinnan. I perfectly coincide with your lordships.

Lord Abercrombie. I am of the same opinion.

Lord Justice Clerk. As this objection is stated, I hope there is not a gentleman of the jury, or any man in this Court, who has not expressed the same sentiment.

Mr. Gerrald. Then my trial would be a matter of form merely, because a juryman, by saying out of doors that he would condemn every member of the British Convention, takes for granted that very principle which remains to be proved. If a juryman had aversed only that he would condemn all the disturbers of the public peace, no doubt he would be well warranted in making that assertion; but, he says he will condemn them, not because they were disturbers of the public peace, but because they were members of a convention, the illegality of which yet remains to be established. So that your lordship must see that such a general declaration operates to the same conclusion, that he would condemn a man for that which may turn out to have been legal and constitutional.

Mr. Creech. My lord, I never said so, it is impossible that I ever could say such a thing.

Lord Henderland. I think Mr. Gerrald is very ill advised in the way in which he stated the objection; because he has, in fact, acknowledged himself a member of the convention.

(The objection was repelled.)

John Hutchinson, merchant, there.

[Page]John Sibbald, smith, there.

Alexander Nisbet, manufacturer, there.

William Ranken, taylor, there.

Archibald Campbell, brewer, there.

Lord Justice Clerk. Do you object to any of these gentlemen?

Mr. Gerrald. Yes, my lord, I object to William Ranken; and the ground of my objection is this, and I can sustain it by both precedent and principle. It consists in this, Mr. Ranken is taylor to the king; and, of course, being in the pay of the crown, being occasionally in the habit of receiving favours from it, he cannot be a fit person to pass upon my assize. And, my lord, I will sustain it by precedent. In the trial of Algernon Sydney, which, I trust, will never be adduced as a precedent, except to be violated, it is stated that ‘the colonel excepted to several of the jury, to some as not being freeholders, and others as being in the king's service, and receiving wages from his majesty.’ And▪ I find by the act of Parliament which took place immediately after the glorious Revolution for reversing the attainder of Algernon Sydney, the very first causes stated as a ground of reversing the attainder, are, ‘Whereas Algernon Sidney, Esq in the term of St. Michael, in the thirty-fifth year of the reign of our late sovereign King Charles II. in the Court of Kings Bench at Westminster, by means of an unlawful return of jurors, and by denial of his lawful challenges, and so on.’ For these reasons the attainder was reversed.

Lord Henderland. The very same objection was stated in the case of Mr. Mair, and was then repelled.

Lord Justice Clerk. If it had been the king himself I don't see that it could be a valid objection.

(The objection was repelled.)

EVIDENCE FOR THE CROWN.

William Scott sworn. Examined by Mr. Montgomery.

Q. Does it consist with your knowledge that a warrant was issued to apprehend the pannel at the bar?

A. Yes, he was apprehended on the morning of the 5th of December.

Q. Was you present at the declaration emitted by him that day?

A. Yes.

Q. Was it emitted voluntarily and freely?—A. It was.

Q. Was he sober and in his senses at the time?—A. He was.

Q. Look and see if that is it?

A. It is; it was emitted upon the 5th of December, and he found bail the same evening.

Q. Did you see him next day?

A. I did; on the evening of the next day I went to the meeting [Page] of the British Convention, accompanied by the lord provost, sheriff-substitute, and magistrates, in Lady Lawson's yard; when we went in we found that whoever had been in the chair had left it. Mr. Gerrald was standing near the chair speaking to the meeting. Mr. Margarot said, they were met upon a constitutional business, to address the king, or something to that purpose; and somebody called out, that nothing could be done till the chair was full. Mr. Margarot was called to the chair, and took it. Mr. Davidson then asked if that was the meeting calling themselves the British Convention; they replied that they were; upon that he said, "if that is the case, you must dismiss; we are come here for that purpose." Then there was a call for Mr. Gerrald to go on, but Mr. Davidson opposed it, and took Mr. Margarot, who was in the chair, by the hand, and pulled him out, and then there was a call for Mr. Gerrald to take the chair, which he did, and Mr. Davidson made use of the same means to induce him to leave the chair as he had done to Mr. Margarot, and he submitted to the compulsion; they considered it as sufficient that he was desired to leave the chair and was taken by the hand. It was then said that it was usual, before dismissing the convention, that they should pray, which Mr. Gerrald did,* and then left the chair; but before he left the chair, as well as at the beginning of the meeting, it was called out that they would remember that the meeting had voted themselves permanent the night before.

Q. Does it consist with your knowledge that on the evening prior to this, the convention were dismissed by the magistrates?

A. I was informed so.

Q. When Mr. Gerrald was brought for examination to the sheriff-clerk's office, were there any papers brought?

A. Yes; when Lyon the messenger and other officers executed the warrant upon Mr. Margarot and Mr. Gerrald, they brought them to the office, with their papers.

Q. What became of those papers?

A. After Mr. Gerrald and Mr. Margarot were examined, it was proposed that the trunk should be opened, but Mr. Margarot refused to deliver up the key; the trunk was kept till next day, when a warrant was issued to send him to jail till he did deliver it up; he refused still to give it up, but finding there was a warrant issued, he held it in his hand and said, if you chuse to take it you may; he stepped aside a little till it was opened, and when he returned he saw the papers looked over, and those that did not apply to the business in hand were given up to them again.

Q. Was it opened in your presence?

A. Yes, and in the presence of Mr. Davidson, the sheriff-substitute.

Q. Look at that paper.

[Page]A. It is the inventory of the papers found in the trunk.

Q. Were all the papers that were inventoried marked?—A. Yes.

Q. Would you know them again?—A. Yes.

Mr. Solicitor General. Look them over carefully by the inventory, and see if these are the papers so inventoried—are they marked with your initials?—Yes.

(The witness then examined the papers, and compared them with the inventory of the papers found in Mr. Margarot's trunk.)

Witness. The first seven articles were claimed by Mr. Gerrald, and the others by Mr. Margarot.

Mr. Montgomery. Were any other papers brought to the sheriff-clerk's office?

A. Yes; when the warrant was executed against this gentleman, one was executed against Mr. Sinclair also, at the Black Bull, who was very much indisposed at the time, and his papers remained at the office, till he was in a situation to come to be examined.

Q. Were you present when his papers were inventoried?

A. I was.

Q. Was Mr. Sinclair present?—A [...]e was.

Q Had he an opportunity of peru [...]ng it?

A. It was read over to him.

Q. Did he object to any of the articles being put into it?

A. No.

Q. Look at that.

A. That is the inventory of Mr. Sinclair's papers,

(The Witness examined the papers, and compared them with the inventory.)

Q. Do you know that there was a warrant issued to apprehend Mr. Skirving?—A. Yes, at the same time.

Q. Were any papers of his found?

A. Yes, the warrant was executed by Lyon the messenger, accompanied by Fraser, Mack, and Dingwall.

Q. Were you present when the inventory of those papers was made up?— A. Yes.

Q. Who brought them to the sheriff-clerk's office?

A. The officers brought Mr. Skirving, with the papers in a bag, Mr. Dingwall put his seal upon them, and Mr. Skirving also, and they remained sealed up in that bag till they were taken out before the sheriff.

Q. Were they taken out in his presence?—A. Yes.

Q. Are they marked with your initials?

A. Yes, they are; this is the inventory of them.

Mr. Clerk. My lord, I understand that the convention was not established under the denomination of the British Convention, till 19th November, 1793. Now, one and all of these papers, as I understand then, that Mr. Scott is going to prove, are of dates anterior to the existence of the British Convention, private papers of Mr. Skirving's, which cannot affect this cause.

[Page] Mr. Solicitor General. If these papers were produced for the purpose of rearing up a charge of guilt, founded upon these papers, the objection would be good, because he is only charged with sedition in the convention; but that is not the purpose for which they are produced; they are produced as papers not constituting guilt of themselves, but as circumstances of evidence, which, though I think they are not decisive ones, ought to be laid before the jury.

Lord Justice Clerk. Are they libelled upon?

Mr. Solicitor General. They are all libelled upon.

Lord Justice Clerk. You know you are entitled to prove every fact and circumstance that may establish the pannel's guilt, as being art and part in the crime.

Mr. Solicitor General. It is very possible that the pannel may find something among them that may be useful to himself; I don't know whether he will or not; there are nine tenths of them that I shall not say a word about.

(The witness examined and compared the papers found in Mr. Skirving's possession with the inventory.)

William Scott cross examined by Mr. Clerk.

Q. When did you first see Mr. Sinclair's papers?

A. On the morning of the 5th of December they were brought to the office, with Mr. Margarot's, and Mr. Gerrald's, but as Mr. Sinclair could not be brought to the office at that time, his papers were not opened till about the 7th or 8th, when he was able to come.

Q. How were the papers secured when you first saw them?

A. Wrapped loosely in a towel.

Q. Were they sealed?—A. No.

Q. In whose hands did they remain from the 5th to 7th.

A. They remained in the sheriff clerk's chamber, in a locked room.

Q. You said they were inventoried in the presence of Mr. Sinclair▪

A. Yes.

Q. Did he offer any protest upon that occasion?

A. I cannot recollect.

Q. Try and recollect.

A. I know he declined answering questions.

Q. Did he offer to take a protest that these were not his papers?

A. I do not recollect it.

Q. You don't recollect the circumstance of a protest at all?

A. No.

Q. Who were present besides you?

A. Mr. Davidson, Mack, and Lyon.

Q. I wish to ask whether, when you went to this meeting, you saw any sign of violence, riot, or disorder?

[Page]A. No. I saw no confusion till the magistrates came there, there was no appearance of a riot.

Q. Do you know whether Mr. Sinclair's papers were opened by any person whatever, before he saw them.

A. No, not that I know of— they were locked up and sealed.

Mr. Gillies. Does it consist with your knowledge that a paper was given to Mr. Gerrald out of the bundle, previous to taking the inventory?

A. No, not previous to taking the inventory; amongst the papers there was one which he said was very material to him, and we thought in was of no consequence, and therefore gave it up to him upon the 6th, and a receipt was given for it.

Harry Davidson sworn. Examined by Mr. Montgomery.

Q. You are sheriff-substitute of the county of Edinburgh.

A. I am.

Q. Do you know that a warrant was issued against Mr. Gerrald.

A. Yes.

Q. Was he brought before you in consequence of that warrant?

A. He was.

Q. Look at that, is that the declaration that he emitted when he was brought before you?—A. Yes.

Q. Was it emitted freely and voluntarily?—A. Yes.

Q. Did he appear to be sober and in his senses at the time?

A. Yes.

Q. Did you observe upon what day that declaration was taken?

A. I think it was upon the 5th of December.

Q. Did you see Mr. Gerrald next day?

A. I did, in the evening, at a meeting of the British Convention, in a wright's shop, in Lady lawson's yard, at the south side of the town. I went there with the lord provost and some of the magistrates, with a number of peace-officers; there was a very great crowd, the shop shas quite filled when I went in; Mr. Gerrald was speaking; I saw a number of people whom I had seen the night before, particularly Mr. Margarot, and Mr. Gerrald. I asked if that was the British convention? I was told that it was. I told them I was the sheriff-substitute of the county; upon that Mr. Gerrald went on speaking. I begged that I might be heard; that I was the sheriff-substitute of the county, and was come to disperse the meeting. I addressed myself principally to Mr. Margarot, as he seemed to be the chief person there; I told him I considered the meeting as an illegal meeting, and I ordered the people to disperse; some conversation ensued upon that, and he told me they were a peaceable and constitutional meeting; that if I would hear what was then going on, I should be satisfied that they were what he said they were, and that they were then meeting upon a petition to parliament; and he shewed me a paper, laying upon the table, with the words ‘petition to parliament’ written upon it. I told them that I came for [Page] the purpose of dispersing them, and that I was determined to remain there till they were dispersed; finding that I was determined to disperse them, Mr. Margarot, with the approbation of the meeting, took the chair, and said they should not dissolve till force was used. I told them I hope force would not be necessary; that I had force with me, but should be sorry to be under the necessity of using it. He said some mark of force was necessary to be used; upon which I took him by the hand, and desired him to come out of the chair: it was a friendly shake of the hand, but he thought that was too slight; I then put my hand to his shoulder, and he came out; they seemed to think that I had committed an assault upon them, and threatened to prosecute me; I laughed at them. Mr. Gerrald was then called to the chair, and I made use of the same kind of force with him; after that he made a prayer, which they said was the usual way of breaking up the assembly, and I certainly allow that staid till I saw them all out of the room; I then looked the door and took the key. Mr. Margarot said it was unnecessary to disperse them, for they had declared themselves permanent. In answer to that I said it might be so, but they certainly should not meet any where in the county; that if they did, they should be dispersed in the same way that they were that night.

Q. When Mr. Gerrald was brought before you, were there any papers brought with him?

A. Yes, Lyon, the messenger, who apprehended Mr. Margarot, Mr. Gerrald, and Mr. Sinclair, brought a number of papers in a locked trunk; which, he said, contained the papers of Mr. Margarot and Mr. Gerrald; they were not opened till the next day.

Q. Who had the key?

A. Mr. Margarot; he refused to give it up till a warrant was issued to open it by force.

Q. Was is opened next day in your presence?—A. It was.

Q. Was there an inventory made of them?—A. Yes.

Q. Was Mr. Margarot and Mr. Gerrald present;

A. They were both present.

Q. Look at that paper?—A. This is the inventory.

Q. Did you sign it?

A. Yes. Mr. Scott selected those which he thought any way necessary or connected with the charge against him, and gave the rest back; an inventory was made of those that were retained, which is this in my hand. [...] see the papers that belonged to Mr. Gerrald have not my initials.

Q. Were they marked by Mr. Scott?

A. Yes, they are marked both with Mr. Scott's and Lyon's initials; those claimed by Mr. Margarot are marked with my initials.

Q. Were there any papers said to have belonged to Mr. Sinclair?

[Page]A. Yes, some of them were given back to him, and some of them were retained.

Q. Is that paper an inventory of them?

A. Yes, it is marked with my initials.

Q. Was Mr. Sinclair present when they were so marked?

A. Yes, he was

Q. Do you know of any papers of Mr. Skirving's being brought to the office?—A. Yes.

Q. Were they inventoried before you? A. Yes, they were.

Q. Look at that?

A. This is the inventory of them, and this is the scrall of the minutes of the convention which was found at Mr. Skirving's.

Q. Was Mr. Skirving present when that inventory was made up▪

A. Yes.

Mr. Clerk. My lords, some of the papers libelled upon are not here. In the inventory of papers there is one mentioned ‘The rules, orders, and regulations of the meeting called the British Convention,’ which is wanting; for any thing I know that may be a very material piece of evidence to shew what was the particular nature of the convention, and with what particular views and for what particular purposes they met; and it is a very great defect in the evidence indeed, that the public prosecutor, after libelling upon these writings and inventorying them, has not produced so material a paper as this. I was entitled to come here, trusting that this paper would be produced by the public prosecutor. I say that paper containing the rules, orders, and re [...]ulations of the British Convention, is a material paper, and he does not produce it.

Mr. Solicitor General. The libel bears, that certain inventories are to be produced, and the papers mentioned in those inventories, the gentleman might have known two or three days ago, what were to be produced, and what not; and it was incumbent upon him to have inspected them; and, if any were wanting, to apply for a diligence to enforce their production.

Lord Justice Clerk. The public prosecutor libels upon such and such papers; it was your duty to see if those papers were in the clerk's hands, and if they were not, you could have applied to the Court and got a diligence for the recovery of it.

Mr. Solicitor General. And this happens to be a printed paper of which they must have one hundred copies in their possession.

Mr Laing. I don't know how we are to get a diligence when we did not know in whose possession it was.

Mr. Montgomery. Here it is, my lord, I have found it among the papers; here are eleven copies of it; in going over the papers Mr. Scott happened to miss it.

Harry Davidson cross examined by Mr. Clerk.

Q. It is hardly necessary to ask whether you observed any thing like scenes of riot or tumult in the convention?

[Page]A. None at all.

Q. When did you first see Mr. Sinclair's papers?

A. The messenger, Lyon, brought them along with the other papers at the time Mr. Gerrald and Mr. Margarot were apprehended, but Mr. Sinclair being unwell, and confined to his room, he was not, on that account, brought to the sheriff-clerk's office at that time.

Q. In what way were they brought to the office?

A. Tied up in a handkerchief. Lyon told me they were papers of Mr. Sinclair's, but I did not touch them. They were wrapped up and tied, but I did not observe any seal.

Q. I think you said they were inventoried in Mr. Sinclair's presence? A. Yes.

Q. Was you present? A. Yes.

Q. Did he sign it? A. No.

Q. What did Mr. Sinclair say; did he deny those papers to be his?

A. I do not recollect that. I think he acknowledged that they were his? because, when the papers were selected, and part of them given back to him, he received them as his.

Q. Was any mention made by Mr. Sinclair of a protest?

A. I really do not know; one of the gentlemen did, but there were so many of them that I cannot say whether it was Mr. Sinclair or not.

Q. You are uncertain whether he took a protest or offered one?

A. I cannot say. I don't think Mr. Gerrald made use of the word protest; either Mr. Sinclair, Mr. Skirving, or Mr. Margarot did, but I cannot say which.

Q. Do you recollect that he gave any reason for not signing the inventory?

A. He refused to sign it, because he thought it was a wrong step, contrary to law.

Q. Did he say any thing more as a reason for not signing it?

A. Upon my word I do not recollect. The sum of what he said was put down in his declaration.

Q. Can you say, from your own knowledge, that all proper and necessary means were used in order to prevent any other papers being introduced into the bundle; or, on the other hand, to prevent any papers from being taken away from that bundle?

A. I cannot say that I had any particular access to know the fact, for I did not see them till they were afterwards opened in my presence.

Q. Were they sealed up before they were opened?

A. I don't think his papers were sealed.

Q. Is it not usual, in these cases, to seal up the papers to prevent any from being taken away, and to prevent others from being put in? A. Yes.

[Page]Q. How was it that it was omitted upon this occasion?

A. I cannot say; there was a great deal to do in the office; I was there from before nine in the morning, till between nine and ten at night; the papers were lodged by the messenger in the sheriff-clerk's hands.

Mr. Solicitor General. You say they were opened in the presence of Mr. Sinclair? A. Yes.

Q. Did he say there were any of the papers that were not his?

A. Mr. Gerrald, Mr. Margarot, and Mr. Sinclair, staid in the same house together; and I remember one or other of them saying there was a paper that was not his, that it belonged to one of the other gentlemen.

Q. Did Mr. Sinclair acknowledge those papers to be his?

A. When Mr. Scott selected them, Mr. Sinclair sat by him, and what papers Mr. Scott did not think necessary to retain, he gave back to Mr. Sinclair.

Lord Dunsinnan. Did Mr. Sinclair see and know that they were marked as his papers, and made no objection to them?

A. Yes.

One of the jury. What length of time might elapse between the time that the papers were brought to the office, and the time when they were opened?

A. They were taken upon the Thursday, and they were not opened till he was able to come for examination, which was on the Saturday forenoon.

Q. Do you know, of your own knowledge, who brought those papers; was it Lyon?

A. Lyon brought them into the office himself, in my presence, and said they were Mr. Sinclair's papers.

Q. Did Mr. Sinclair take any concern in what was passing, as to the inventory?

A. Not any thing further than putting into his pocket those that Mr. Scott returned to him.

Lord Henderland. Do you know where they were kept from Thursday to Saturday?

A. I do not of my own knowledge; but I think, when I asked Mr. Mack, he said they had been under h [...]s own lock and key.

Mr. Gillies. Was Mr. Sinclair desired, upon that occasion, to s [...]gn the inventory? A. Yes he was.

Q. Did he sign it?

A. I think he did not. In the first place he declined to sign his declaration, because he considered himself improperly brought before me, and I think he mentioned that as he had declined to sign his declaration he should decline to sign the inventory of course.

Mr. Solicitor General. Did he complain of papers being taken from him under a general warrant as an illegal thing?

[Page]A. I don't know that he said any thing about general warrants; Mr. Margarot did, but Mr. Sinclair was much milder.

Mr. Gillies. The witness has said he refused to sign the inventory for the same reason that he refused to sign the declaration. Now, the fact is, that the declaration is signed by Mr. Sinclair.

Witness. That is a circumstance that I had forgotten.

Mr. Solicitor General. The fact is, he signed the first page of the declaration, and refused to sign the rest; that is the fact.

James Lyon sworn. Examined by Mr. Montgomery.

Q. Did you execute a warrant against Mr. Gerrald and Mr. Margarot?

A. Yes; I went to the Black Bull to enquire for these gentlemen; the waiter acknowledged they were in the house, but declined going with me to their rooms; he told me the number of their rooms, and the first room I went to was Mr. Gerrald and Mr. Margarot's. I knocked at the door, and they desired me to come in, which I did. I told them I had a warrant to carry them before the sheriff; they were in bed; they got up immediately; I collected together the papers that were in the room. Mr. Margarot proposed putting them in a trunk, and asked Mr. Gerrald if he would put his into it, he consented; they were all put in, and Mr. Margarot took the key into his possession. When he was coming away, says he, ‘I don't give you the trunk, you may take it at your peril.’ I told him I was not scrupulous about that, and immediately gave the trunk to a chairman, to put it into a coach. I looked out Mr. Sinclair's papers likewise, and took them at the same time.

Q. Speak to Mr. Gerrald's and Mr. Margarot's papers first.

A. I must rehearse this: When we came to the sheriff-clerk's office in the coach, I left the trunk and the other papers in the office, and sent a message to Mr. Scott to inform him of what I had done, and then I got a message from him to bring Mr. Sinclair in a chair. I went to Mr. Sinclair and told him; and then there came a message that they wondered I was so long, and then there came another message to let him remain at his lodging, which I did till between 9 and 10 o'clock at night.

Q. When was the trunk opened?

A. I think it was two days after.

Q. Was you present when it was opened? A. I was.

Q. Who had the key? A. Mr. Margarot.

Q. All the time? A. I know nothing to the contrary.

Q. Was there any inventory made up of the papers?

A. Yes, at the sheriff clerk's office; there was none made at their lodgings. When the trunk was to be opened, Mr. Margarot would not give up the key, and it was proposed to get a Smith to break it open, but it was delayed that day. The next day Mr. Margarot was brought before the sheriff-substitute and Mr. Scott; he said he would not give it up, but held it in his hand, so, (describing i [...]) [Page] and said it must be taken from him by force; Mr. Scott was going to take it from him, but Mr. Davidson said no, he must not do it, some other body must do it, and then Mr. Mack gave a gripe at it, and took it from him; it was then opened, an inventory was made, and I put my initials at the back of it.

Q. Look at these papers, and see if these are the papers you found in Mr. Gerrald's room?

A. Yes, they are, they have my initials upon them.

Q. Was Mr. Sinclair in a separate room from Mr Gerrald and Mr. Margarot when you executed the warrant? A. Yes.

Q. Were the papers separate? A. Yes.

Q. And you brought them with you to the sheriff-clerk's office?

A. Yes; and Mr. Margarot and Mr. Gerrald were in the chariot with me.

Q. What did you do with Mr. Sinclair's papers?

A. I left them in the sheriff-clerk's office.

Q. Was you present afterwards, when they were opened?

A. Yes.

Q. How long after was it?

A. I am not certain; it might be a few days after.

Q. Did they seem to be in the same situation as when you brought them into the office?

A. They appeared to me so; they were in my handkerchief, my name was in the handkerchief.

Q. Were you present when the inventory of them was made out?

A. Yes.

Q. Was Mr. Sinclair there?—A. Yes.

Q. Were any papers given back to him?—A. Yes.

Q. Did he take them?

A. He took all that were given him, which was some that were not considered material to the business in hand.

James Lyon, cross-examined by Mr. Clerk.

Q. You have said that you carried Mr. Sinclair's papers to the office yourself?—A. Yes.

Q. And left them there—A. Yes.

Q. Was there any objection make by any person concerning the manner in which you had secured those papers in the sheriff-clerk's office, or any where else; did nobody tell you it was exceedingly dangerous to keep those papers unsealed up?

A. A do not recollect any such thing.

Q. Did nobody say that other papers might be put in that did not belong to Mr. Sinclair?

A. To the best of my remembrance no person stated any such thing; and, with humble submission to you, my lord, I went from the sheriff clerk's office to bring off Mr. Sinclair, and I was not back till 9 or 10 o'clock at night, so that the papers were in the sheriff-clerk's office all that time.

[Page]Q. Did you take any notice of Mr. Sinclair's papers when you feized them?

A. I found some of them lying upon the desk, and one paper I got lying below the bed.

Q. Have you any other means of knowing that these are the same but that of knowing your own handkerchief?

A. Upon my word I don't think there was any thing else.

Mr. Solicitor General. At the sheriff-clerk's office, did you deliver them into any body's custody?

A. There were two of Mr. Scott's clerks there, Mr. Mack and Mr. Dingwall, but I was so hurried I was not there, I dare say five minutes; but I think I desired them to take care of them.

Q. A day or two afterwards, when you saw this bundle opened, had you any reason to believe or suspect that any alteration had been made?

A. No, none at all; they appeared to me to be in the same state.

Mr. Gillies. Did you see Mr. George Sinclair at any time with Mr. Charles Sinclair?—A. Yes.

Q. Did he say any thing to you upon this subject, about their being tied up loosely; recollect yourself?

A. I will. Have patience, and I will recollect.

Lord Justice Clerk. Who is Mr. George Sinclair?

A. He is Mr. Sinclair of Bride End. I have some faint remembrance that he said something about an inventory, but I don't recollect that it was while I was with Mr. Charles Sinclair; I don't know but it was after they were examined, I am not sure.

Mr. Clerk. Was Mr. George Sinclair present when the inventory was taken?

A. He was not in the sheriff-clerk's chamber that day.

Q. Did you see Mr. George Sinclair either before or after taking the inventory?

A. I saw him that day that I was waiting with Mr. Charles Sinclair; and, if I mistake not, he was over at the office, but I think not the day that the papers were examined.

Q. Have you any recollection of any thing of this kind being said by Mr. George Sinclair?

A. I cannot say; I cannot be positive; I am upon my oath, and I must be guarded in every respect.

Q. Did he not tell you that it was wrong and dangerous not to inventory these papers when they were seized?

A. To the best of my recollection he said something, that it was a pity but there had been an inventory, or something of that nature.

Joseph Mack sworn. Examined by Mr. Montgomery.

Q. Did you attend the sheriff-clerk's office?—A. Yes.

[Page]Q. You are clerk there?—A. Yes.

Q. Were you present at the execution of the warrant against William Skirving, secretary to the British Convention?

A. Yes.

Q. Did you see the papers found in his possession?—A. Yes.

Q. Was there an inventory made of them?

A. Yes; they were put into a bag, and sealed by Mr. Dingwall and Mr. Skirving.

Q. Did you see the inventory of them?

A. I came in while the declaration was making, and I saw the inventory made out.

Q. Were the papers acknowledged by Skirving?

A. Yes; and the papers that were of no consequence were given back to him.

Q. Did he acknowledge these papers to be the same that were put into the bag?—A. Yes.

Q. Were you in the sheriff clerk's office when some papers were brought in a trunk?—A. Yes.

Q. Who brought them?

A. I believe it was James Lyon, the messenger; the trunk came into my possession very soon after.

Q. Did you write an inventory of the papers in that box?

A. Yes.

Q. Were any other papers brought besides those that came in the box?

A. There were some papers which came in a napkin.

Q. Did you keep those papers?—A. Yes.

Q. Did you keep them locked up?—A. Yes.

Q. Did you see an inventory made of them likewise?—A. Yes.

Q. And they were in your possession till the inventory was made?

A. Yes, and after it too.

Lord Eskgrove. During the time it was in your possession, were there any papers taken out or any put in?—A. None.

Mr. Solicitor General, Was it under your lock and key all the time —A. It was.

Mr. Montgomery. Have you the charge in general of all the papers in that office?—A. Yes.

Q. Is that the inventory that was made up of Mr. Sinclair's papers?—A. It is.

Q. Look at that bundle of papers and see if they are the papers in the inventory?

A. (Looks over them.) My initials are upon the back of every one of these papers.

Q. Do you see Mr. Scott's initials upon them likewise?

A. Yes, and Mr. Davidson's likewise.

Joseph Mack cross-examined by Mr. Clerk.

Q. You spoke of some papers being brought loose in a napkin [Page] Was you in the office when they were brought?

A. I cannot say positively that I was in the office, but I got them soon after.

Q. You cannot recollect then, positively, who put them into your hands?

A. I believe I found them in the sheriff's room.

Lord Justice Clerk. Was the sheriff there himself?

A. Mr. Davidson, Mr. Scott, and Mr. Dingwall were in the room.

Mr. Clerk. Were they under the charge of any particular person?

A. No; they were lying in the room, and I took them away.

Q. I think you said these papers were afterwards locked up?

A. Yes.

Q. When did you lock them up?

A. After the examinations that day were finished.

Q. At what time was that?

A. I cannot exactly recollect; it might be about 9 o'clock.

Q. Lyon brought these papers loose in a napkin, and the box was locked?—A. Yes.

Lord Justice Clerk. And the napkin was not locked?—A. No.

Mr. Clerk. Is it not usual when you seize papers to seal them up?—A. Yes.

Q. Was you present when the inventory was taken?—A. Yes.

Q. And Mr. Sinclair was present?—A. Yes.

Q. Was you present when an objection was taken, either by Mr. Sinclair or for him, upon the ground that the papers were not sealed up?—A. I do not recollect it.

Q. Do you recollect Mr. Sinclair's declaration upon taking the inventory?—A. Yes.

Q. What did he say when this was doing?

A. He seemed very easy upon the business, and behaved very much like a gentleman.

Q. Did he say the papers were his?

A. He did not deny that they were his; he took back the papers that were returned to him.

Q. Did he say any thing about a protest?

A. Yes, he offered to take a protest, and Mr. Davidson told him it was not usual to receive protests in these cases.

Q. Upon what ground did he offer to take a protest?

A. Because his papers were taken from him, as he imagined, illegally.

John Dingwall sworn. Examined by Mr. Montgomery.

Q. Were you present at a search made in Mr. Skirving's house for papers? A. Yes.

Q. Did you find any papers there? A. Yes.

Q. Were they put into a bag in your presence?

A. They were put into two bags.

[Page]Q. And were they sealed? A. Yes.

Q. In Mr. Skirving's presence?

A. Yes; I put my seal upon one end, and he put his seal upon the other.

Q. Did you see those bags afterwards? A. Yes.

Q. Where? A. In the sheriff-clerk's office.

Q. Look and see if these are any part of them?

A. This paper, or scroll of minutes, I found lying upon the table in Mr. Skirving's room.

Q Did you see an inventory made up of these papers? A. Yes.

Q. It was fairly made up? A. Yes.

Q. Did you assist in making it up?

A. I made out Mr. Skirving's declaration.

Q. Was you present when Mr. Sinclair's papers were brought into the sheriff-clerk's office? A. No.

Thomas Cockburn sworn. Examined by Mr. Anstruther.

Q. Did you belong to the society of the friends of the people?

A. I was a member of that society.

Q. Was you a delegate to the convention that met in Edinburgh in October last? A. Yes.

Q. Did you attend that that afterwards met in November?

Q. Yes; the British Convention?

Q. What was the occasion of the meeting of the second convention in November.

A. The occasion, so far as occurs to me, was the arrival of some delegates from England.

Q. Was the pannel at the bar one of those delegates from England, in consequence of whose arrival that second convention met?

A. I always understood that Mr. Gerrald was one of them.

Q. When you first met in October, what did you call yourselves.

A. The convention of the Friends of the People, and afterwards the British Convention, as I understood, but I was not present at the time?

Q. Did you attend frequently?

A. I attended frequently, and was absent frequently.

Q. And what title did you give each other?

A. There were various designations, but Citizen was the one they most commonly used.

Q. When you were divided into smaller bodies, what did you call yourselves?

A. They were first, I think, denominated Divisions; afterwards Sections, and there was another name which I do not recollect.

Q. What name were they most frequently called by?

A. I do not recollect at present.

Q. Do you recollect any institution of what was called Primary Assemblies? A. No.

Q. Do you recollect their being divided into Primary Societies?

A. No.

[Page]Q. Did you ever hear departments mentioned?

A. I do not recollect.

Q. Had you different kinds of committees appointed?

A. Yes.

Q. Do you recollect the names of any of those committees?

A. I think there was one of them designed the Committee of Union.

Q. Had you any Committee of Organization?

A. I think there was.

Q. Was there any that took charge of your money matters; how was that designed?

A. They were not very regular; but there was a committee instituted for that purpose, which was usually called the Committee of Finance.

Q. And likewise Committees of Instruction?

A. I do not recollect that.

Q. For instructing different parts of the kingdom, such as the Highlands, and giving them political knowledge?

A. There was a motion, I recollect, for promoting constitutional knowledge.

Q. Do you recollect that there was a committee for that purpose?

A. So far as I recollect at present there was mention made of a committee for promoting constitutional knowledge.

Q. Had you likewise a Committee of Secrecy?

A. It may be called a Committee of Secrecy, but there was no name that I know of given to it by the convention.

Q. Which carried on its proceedings more privately than the other committees from which it got its name, I suppose, of a Committee of Secrecy? A. Yes.

Q. When you met, what did you call your meetings?

A. They were most frequently called Sittings, but I paid very little attention to that circumstance.

Q. Did you ever hear of any person who had deserved well getting the honours of the sitting?

A. I think I have heard in one of the committees some such thing of a single person; humorously it might have been mentioned by some humourish man, and I don't doubt but it might be taken down in the minutes, but those minutes were never authenticated by the convention, because it was designed that they were to have a committee to revise them.

Lord Eskgrove. Was any person, a stranger, ever admitted to a sitting in the convention?

A. All I recollect is, that the honours of the sitting were mentioned.

Lord Eskgrove. To the best of your recollection, was any stranger ever allowed to sit in the convention, upon a motion of that sort?

[Page]A. I do not recollect. I think I recollect it was rather honourable mention than honours of the sitting that I heard.

Mr. Anstruther. When you received pecuniary assistance, was honourable mention made of it?

A. It is that that occurs to my recollection most, but I cannot be very positive; I only recollect something of the word honourable mention, or something of that nature.

Q. How did you date your proceedings on what took place in the convention? Did you take the year of God in the common way, or in any other way? A. I cannot recollect.

Q. Did you ever hear of the first year of the British Convention, for example?

A. I cannot recollect; I never looked in the minutes.

Q. Was it not the practice in the convention to read over the subsequent day what passed the day before?

A. I was not there till the business of the day was generally over.

Q. Did you never hear what was the manner of their dating their minutes?

A. I don't recollect any thing about it; I cannot say either one way or the other; I was seldom present when that business was done; but I once remember hearing it read before the convention went to business.

Lord Justice Clerk. Have you no recollection of hearing of the first year of the British Convention?

A. I think I remember hearing something of that kind, but I cannot say upon what occasion.

Mr. Anstruther. Did you ever see the pannel there?—A. Yes.

Q. Did he frequently speak there?

A. Not so frequently as others.

Q. Did he ever act as preses?

A. I don't recollect ever seeing him act as chairman in my life.

Q. Did you ever see him act as chairman to any of the committees?—A. I was not a member of any of the committees.

Q. Did you happen to be present at a meeting on the 21st of November when the measure of a general meeting of the Scotch and English delegates was proposed?

A. There was a committee of union appointed to draw up regulations with respect to the people in England and the people in Scotland, whose minds might be one, with respect to the subject of reform, in order that they might be united in their endeavours.

Q. Do you recollect upon that occasion the pannel at the bar making a speech, and you say he made few speeches, so that you will be the better able to recollect?

A. I said he did not speak so frequently as some.

Q. Do you remember that speech?

A. I think there was a conversation one evening with respect to [Page] the union, and to the best of my recollection he did speak upon that occasion; I was there part of the time.

Q. Was you at that time in the practice of reading the Gazetteer when published?—A. I used to read part of them.

Q. Did you read that in which Mr. Gerrald's speech appeared, of which you say you heard a part?

A. I cannot say but I might have seen it, but at this distance of time I can say very little about it. I make no doubt but I read it.

Q. Did you think that the account you saw in the paper agreed with what you heard in the meeting?

A. My memory is not so tenacious as to recollect a long speech; I cannot be very positive.

Q. But in substance did it appear to you to be the same that was delivered by Mr. Gerrald.

A. All I can say is, that I am ready to give a candid answer to any thing that I know, but as to what may be read from a newspaper I cannot say.

Mr. Solicitor General. The question is, whether the account given in the Gazetteer agreed with what you heard in the convention.

A. So far as I recollect I did not observe any thing remarkably deficient in it.

Q. Look at that paper and read it?

A. With respect to newspapers, I hope the Court will allow me this, which I think is fair, that any question that is put to me, or read to me, I shall endeavour to give a fair answer, but as for reading it, I will not be concerned with it.

Mr. Anstruther. Was you present when a motion was made by Mr. Callander, to this purpose, ‘that in case the minister, or any other member, bring into the House of Commons a motion for a Convention Bill, as passed in Ireland, for preventing the people from meeting according to their just rights by the Revolution, the same motion shall be noticed to the delegates of the respective societies, immediately to meet in convention to assert their rights?’

A. To the best of my recollection, I heard a motion of Mr. Callander's read one night to that purport.

Q. Was that motion made the subject of discussion at a future meeting?

A. I don't recollect being present upon that business till it was taken up as a report returned from a committee.

Q. Who was it that read that report?

A. I think it was Mr. Sinclair.

Q. Did you read those parts in which the minutes of this convention were given an account of?—A. Yes.

Q. Was any resolution adopted in the convention in consequence of this report?

[Page]A. So far as I recollect, the convention conversed upon the report a long time; and, if I remember right, they agreed, that in case of a Convention Bill, similar to that which had passed in the parliament of Ireland being brought into the parliament of England, that that should be considered as a reason why they should hold a meeting, which was mentioned as a Meeting of Emergency.

Q. Did you hear of any other cases in which they were to meet?

A. I think there were others in the report; but I am not able to say positively whether they were taken into the consideration of the convention.

Q. Do you recollect any other cases?

A. I think one of them was a suspension of the Habeas Corpus Act; and I think there was mention made of the landing of foreign troops, or a foreign invasion, I am not certain which.

Lord Justice Clerk. Did you think they might not be both used?

A. I cannot say.

Mr. Anstruther. What troops did you suppose those foreign troops were?

A. I cannot say; it might be the troops of any country, it was in a general sense.

Q. Did you suppose they were to meet upon the landing of troops who were our allies though not British troops, for instance Hessians and Hanoverians?

A. As to the intention of that, it is what I cannot enter into.

Q. Upon the oath you have now taken, did you hear that the convention were to meet upon the landing of Hessians or Hanoverians in this country?—A. I cannot recollect.

Q. You have mentioned three cases of emergency; was any mention made of the suspension of the act for preventing wrongous imprisonment?—A. I do not recollect.

Q. Where were they to meet?—A. I know not.

Q. Who was to fix the place of meeting?

A. To the best of my recollection there was a committee appointed for that purpose.

Q. Were they to keep it in secret till it happened?

A. They were not to tell it; there was a confidential trust reposed in a few that they were to fix the place and find ways and means.

Q. Was there any mention of sealed letters being delivered to them fixing the place of meeting, which were not to be opened till delivered by the delegates to their constituents?

A. I think I heard a mention made of sealed letters, but then I don't lay that that was the mode that was determined.

Q. What number was to proceed to business in case of these events happening?—A. I cannot be positive upon that subject.

[Page]Q. Was this resolution come to in a more solemn manner than any other resolutions in the convention?

A. So far as I recollect the convention deliberated upon it in a very decent, serious manner; and at last, they resolved it standing

Q. They all stood up, to declare their purpose of carrying it into execution more solemnly than usual?

A. We all stood up; and I think we did so upon another occasion.

Q. Do you recollect what that other occasion was?

A. I rather have heard of it than was present at it.

Q. Was it at the proposal for a union?

A. I was not present.

Q. Or upon their changing the designation of their meeting to that of the British Convention?—A. I was not present.

Q. Did they, in passing this resolution, declare before God and the world, that they would do so and so?

A. I recollect the expressions before God and the world were made use of.

Q. Did you ever hear such solemn expressions made use of upon any other occasions?—A. I do not recollect.

Q. Did the pannel make a speech upon that occasion, after this resolution was so solemnly passed?

A. So far as I recollect, Mr. Gerrald did speak, after the resolution.

Q. Did you pay attention to this speech?—A. Yes.

Q. Did you afterwards read that speech in the Gazetteer?

A. I do not doubt but I might in reading the Gazetteer.

Q. And did the account in the Gazetteer much differ from what you had heard?

A. I can say no more than I have already said, that I did not observe any thing remarkably erroneous in it.

Q. Was it a cool deliberate kind of speech, or was it warm and animated?

A. I don't recollect, but Mr. Gerrald spoke in his usual tone.

Thomas Cockburn cross examined by Mr. Clerk.

Q. You said you was a member of the convention; what did you understand to be the purposes for which they met?

A. The purposes in general, for which the convention met, was a reform in the British House of Commons.

Q. By what means did the convention intend to accomplish this reform?

A. The means, so far as I understood, that they intended to use, was to endeavour to collect the minds of the people who were of the same opinion, and, by legal methods to obtain their object, in a peaceable manner, so far as I understood.

Q. Were they to petition parliament?

[Page]A. It was agreed upon in the convention as I understood in October; but I was not present.

Q. What did you understand to be the object of the British Convention which met in November?

A. I understood nothing essentially different from the convention that met before; the only difference was the accession of a number of delegates from England; their design I undertstood to be the same.

Q. You have been asked whether Mr. Gerrald made a speech upon the 21st of November; now I beg leave to read it over to you, and then tell me if you recollect Mr. Gerrald making such a speech?

A. If there are any words that I recollect I shall tell you.

Mr. Burnet. He has already said, that when he read the Gazetteer there was nothing essentially different.

Mr. Clerk. He said, that he generally read the Gazetteer, and he perceived nothing remarkably deficient; he spoke generally. I have not yet heard the witness say that he heard Mr. Gerrald make this speech which seems to be principally founded on in the indictment; and therefore I conceive it necessary that the fact should be ascertained, whether the witness heard that speech, yea or not.

Mr. Solicitor General. I can certainly have no objection, except this, that the witness has been examined on the part of the prosecutor, and has given all the answers that he can give.

Lord Justice Clerk. There is one observation, I shall make to the gentlemen of the jury, that this witness has attended several meetings of the convention, and when he was there, Mr. Gerrald made some speeches, although not so many as some other people did; and he tells you he was induced to read the Gazetteer, at least, so far as related to the proceedings of the convention. The speeches made to-night are published in the Gazetteer to-morrow, and I would ask whether that witness's comparative view of the speeches at that time, or so long after, is most likely to be right.

Mr. Fletcher. He says there was nothing remarkably erroneous: now that appears to me clearly to imply that there was something erroneous.

Lord Justice Clerk. It does no such thing.

Lord Henderland. The way that I have taken it down is this, that he did not observe any thing remarkably deficient or erroneous in the speeches in the Gazetteer; that he don't doubt but he may have read it in the Gazetteer, and did not recollect any material difference.

Mr. Fletcher. Your lordship will allow me to explain my meaning: the words are, that he observed nothing remarkably erroneous; I submit to your lordship, and to every man who hears me, if that does not imply that there was something erroneous; it may therefore [Page] happen that upon reading it over to the witness, he may say that those parts charged as most criminal are erroneous.

Lord Justice Clerk. I deny the conclusion Mr. Fletcher has drawn from his premises; the plain meaning is, that there was no remarkable difference.

Mr. Gillies. It is certainly true, that his recollection must have been more accurate then than at present; but this is equally true, that the witness, having just heard these speeches, would not read them with that attention that he might if he now read them: for my own share, in such circumstances I should not have read it at all.

Lord Justice Clerk. I think the witness' own idea of the matter is very different: he says he read over the Gazetteer, and observed nothing remarkably deficient. What do your lordships say; shall it be read, yea or nay?

Lord Henderland. I don't see any particular reason why it should not be read.

Mr. Solicitor General. Let the witness read it himself?

A. No, I beg to be excused; I think I should rememember it better by hearing it read than by reading it.

(The Clerk of the Court then read the speech from the Gazetteer.)

Mr. Clerk. Do you recollect reading the speech you have now heard in the Gazetteer?

A. I think, so far as I recollect that it is the same.

Q. Do you think it has mistated any thing that was delivered in the speech?

A. I think in the course of reading, I recollect a great many words interspersed through this speech that I recollect Mr. Gerrald spoke in the course of a speech one evening; but I do not mean to identify the whole speech.

Q. You mentioned a motion of Mr. Callender's when you was present?

A. I heard a motion made which I understood to be a motion of Mr. Callender's.

Q. It was read to you from the indictment, but I shall read it to you again—"That in case the minister, &c (reads the motion from the indictment) I think you said, to the best of your remembrance, this was the substance of the motion you heard?

A. Yes.

Q. I shall now read it from the minutes of the convention: ‘That in case the minister bring into the Commons House of Parliament a motion for a Convention Bill, it shall be noticed immediately to the delegates.’ You will observe this is a much shorter, motion and something different: now which of these, according to your recollection, was the real motion you heard at the time?

A. Who had the management of the business I cannot say; but the thing that was first read was similar to what I heard.

[Page] Mr. Solicitor General. Mr. Clerk has had one speech read to this gentleman, I desire that the other may be read, and he will say whether he recollects any material errors.

(The Clerk then read the other speech from the Gazetteer.)

Mr. Solicitor General. Now, is this nearly the substance, or do you recollect any great difference?

A. I recollect considerably less of that than I do of the other; the beginning of it I don't recollect at all.

Lord Justice Clerk. Did you read the Gazetteer when it was first published?

A. I was in the habit of reading the Gazetteer.

Lord Justice Clerk. It gives me great pleasure to hear a witness, who was a member of a convention like this, give his evidence fai [...]y, like an honest man.

A. I wish the gentlemen of the jury to understand that I have not identified the speeches in the Gazetteer.

Mr. Solicitor General. We know you have not; nor shall any body say that you have.

Mr. Clerk. I observe a great many sentences in this indictment, printed in italics; and I take notice of this, that the jury may be upon their guard, and not suffer themselves to be misled by that means.

Mr. Solicitor General. It is very wrong, that there was any part of it printed in italics, and how it happened I don't know; but all I can say is, to desire the gentlemen of the jury to pay no regard to them.

Alexander Aitcheson sworn.

Lord Dunsinnan. Has any body offered you any reward, or promise of reward for giving evidence here?—A. None.

Q. Has any body told you or instructed you what to say?

A. If his majesty himself had instructed me what to say I would not have regarded it.

Q. Have you any malice or ill-will against the pannel at the bar?

A. No, far from it; I consider him as a second LYCURGUS, a voluntary exile for the good of his country, and for the same reason too;—a wish to give a better code of laws to his countrymen than they have hitherto enjoyed.

Q. You was a member of the British Convention?

A. Yes, I had that honour.

Lord Dunsinnan. You will remember that whatever you may say regarding your own conduct you cannot be made an object of prosecution for.

A. My family is doubtless obliged to the public prosecutor.

Examined by Mr. Anstruther.

Q. You was a member of the convention of October?

[Page]A. Yes.

Q. That was given up?—A. Yes after they had sat four days.

Q. When was it resumed again?

A. I do not at present recollect, but it was some time in November.

Q. Was you a delegate?—A. Yes.

Q. Did not you give in a resignation?

A. Yes, I gave in my resignation, as I had not time to tend regularly, but it was not accepted, and I did therefore attend occasionally.

Q. What was the occasion of their meeting the second time?

A. Because the delegates from England did not arrive in time enough, and therefore we were called together again upon their arrival.

Q. Who were those delegates?

A. There were four or five of them: there was Citizen Margarot, Citizen Yorke, who I believe has since died abroad, Citizen Browne, Citizen Sinclair, and the pannel at the bar.

Q. When you first met in October, and afterwards in November, by what designation did you pass?

A. The Convention of Delegates.

Q. Did you change that designation?

A. Yes, to that of the British Convention.

Q. What was the purpose of your meeting?.

A. To obtain a Reform in Parliament, by Annual Parliaments and Universal Suffrage.

Q. Who acted as secretary?—A. Citizen Skirving.

Q. Had he any assistant?—A. Yes, I had that honor.

Q. Did you frequently attend in that capacity?

A. I did, as often as I could.

Q. Were there any minutes of the proceedings?

A. Yes, there was a scroll of minutes.

Q. Should you know them again?—A. Yes, certainly.

Q. You wrote part of it yourself?—A. Yes.

Q. Was it not the practice of the British Convention, always on the subsequent day, to read over the minutes what passed the day before?

A. It was the general practice, but was sometimes neglected.

Q. Were there ever any observations or remarks made?

A. Corrections were frequently suggested at the time, and other corrections were delayed till the committee should meet to correct the whole.

Q. From what you know of those minutes, that you had occasion to take down yourself, do you think the account they gave was a fair and accurate account?

A. As far as my memory could serve me, though no doubt I may have made many mistakes.

[Page]Q. Had you occasion to bear the minutes read over of what passed when you [...] present?—A. Yes, frequently.

Q. Did the pannel at the bar frequently attend the meetings of the convention; was be constantly attending?

A. Whether he was constant or not I cannot say; I have seen him there.

Q. Did he take an active part in the business?

A. He took an active and a very public spirited part.

Q. Did he act as preses or chairman?

A. I do not recollect his being called to the chair, I rather think he was not.

Q. Do you recollect, on any of the nights that you attended the British Convention, any proposal having been made for a union between the delegates of the two countries, England and Scotland?

A. Some such proposal I believe was made when I was absent, but I think I heard of it.

R. Did you come in during the evening when it was canvassed?

A. Yes, I did.

Q. Did you hear any thing of a Committee of Union to be appointed?

A. I heard that there was such a thing proposed.

Q. You was not in when the proposal was made?

A. I am not certain, but I rather think not.

Q. Was you present when the pannel made any speech?

A. I was present when he made several; and I was told he had made many when I was absent, which I regretted that I had not heard.

H. Do you remember that he made any upon this proposal of union?—A. I cannot charge my memory with it.

Q. If you came in, in the course of the night, when the proposal was made, it is possible you may recollect?

A. I came in upon this occasion, while Mr. Gerrald was speaking.

Q. If the speech, or a part of it, was read to you, you could possibly tell whether it was accurate or not?—A. I cannot say.

Q. Take a glance over that paper, and tell us if you recollect it?

A. I think you had better shew me the indictment: he certainly is not indicted upon the newspaper account. (looks it over) I think I can say that I recollect nothing of it but these words, ‘The voice of the people may be wrong when their understandings are perverted by priestcraft, or darkened by political superstition, like the voice once heard in Jerusalem of crucify him! crucify him.’ The striking allusion that was made by the pannel to that important transaction makes me recollect it. As to any thing else that passed that evening I cannot recollect. I think I came in a little before this part of the speech.

[Page]Q. Do you think that was the night on which the motion for a union was canvassed?—A. I cannot say.

Q. Did you read the Gazetteer at that time?

A. Not when they were published; I had very little time.

Q. Do you recollect after this, a motion being made in the convention, said to be a motion of Mr. Callander's, in the following words, or words of a similar import (reads Callender's motion from the indictment)?

A. I do not recollect whether I was present at that time or not; I know that such a motion was made by Mr. Callander.

Q. Do you know if it was referred to a committee to make any amendments or alterations?—A. Yes.

Q. Was there any report?

A. Mr. Callander was very much enraged that his motion was not adopted precisely in his own words.

Q. By whom was the report given in? A. I cannot say.

Q. Look at that (Callender's motion in the minutes)?

A. That is my hand-writing.

Q. That regards the motion we are now talking of?

A. Yes, it does.

Q. Look at that (Mr Sinclair's amendments), it seems to have been in your possession, and marked in your handwriting?

A. Yes.

Mr. Solicitor General. That is one of the papers that was found in Sinclair's possession.

Witness. It was handed to me as assistant secretary.

Mr. Anstruther. Was you present when this amended resolution was discussed, and did you continue there during the evening?

A. I cannot say, I rather think not; for almost every evening I was obliged to go away upon the business of a respectable gentleman.

Q. Do you recollect having been present at that convention, when there was any proposal to burn a motion?

A. I think I recollect it.

Q. Whom was that motion made by?

A. Mr. Sinclair, I opposed it, because we had hitherto done every thing with openness and candor.

Q. Do you recollect the nature of that motion that was proposed to be burnt?

A. I think it related to the calling a convention of emergency.

Q. Had you any idea of the reason why he made such a proposal?

A. Owing to some arbitrary stretches of power that had been threatened.

Q. Do you remember a motion made by Citizen Margarot of the followtng import, ‘That a Secret Committee of Three and the Secretary be appointed,’ &c. (Reads it from the indictment.) [Page] Was any resolution adopted for carrying that into execution? Was there a committee appointed?

A. I believe there was a committee of three or four.

Q. By what name was it called?

A. A Committee of Emergency.

Q. In what cases was this committee to assemble the convention?

A. I believe one was in case any illegal attempt should be made to disperse the convention. Another occasion was in case of a foreign invasion; and I heard next day that another was, in case the habeas corpus act happens to be suspended, or the act for preventing wrongous imprisonment. In any of these cases the convention of emergency were to meet.

Q. How was this convention of emergency to be assembled?

A. I know of no particular mode in which they were to be assembled.

Q. Do you recollect what number they were to consist of?

A. There were just three and the secretary appointed on this business.

Q. You had no idea of the place where the convention were to meet?—A. No.

Q. That was kept secret?—A. Yes.

Q. And this, to the best of your recollection, was the motion proposed to be burnt? A. Yes.

Q. You said the reason of proposing that measure was, that some arbitrary stretches of power had been made?

A. No, they had not been made; they were only threatened.

Q. Do you recollect how you generally designated each other in the convention?

A. We addressed each other in different modes, very often Sir, very often Mr. such a thing, frequently Citizen; and I recollect farther, that the person who introduced the word fellow-citizens amongst us, was a very respectable young nobleman, Lord Daer; and he used it singly for a long time, like the man who walked near thirty years with an umbrella over his head, and nobody followed his example.

Q. When you were divided into smaller parties, what were they called?

A. They were first called divisions, and then classes, afterwards the word sec [...]ons, was adopted as preferable.

Q. Did you ever use the word sittings?

A. Yes; and I suppose you call this a Sitting of the Court of Justiciary.

Q. You had in your official capacity an opportunity of seeing papers given in; how were they dated?

A. Variously, according to the fancy of the writer.

Q. Here is one dated from Liberty Court?

A. Very good▪ but, my lord, what objection have you to the word Liberty Court? Is the very name of liberty become unpopular? [Page] And here is another dated Liberty Stairs. Now, my lord, we have a number of new titles, and new streets, both in Edinburgh and Leith. I have been in Merchant street, where I believe no merchant ever lived, and where I am sure there is not a single merchant's shop; I have been in Quality-street, where not a person of quality resides; I have been in Princes-street, where a Prince never walked; I have been in Queen-street, where her most gracious majesty never set her foot. Besides these, we have St. George's-street, St. Andrew's-street, St. James's-square, St. Patrick-street,—

Lord Justice Clerk. What is all this idle harangue to the purpose?

A. My lord, I must say, it is exceedingly improper, (I beg pardon for saying it,) to interrupt a man upon oath. It is surprising that the words liberty court should be found fault with, when we have so many new streets named after saints, although the majority of their inhabitants, so far from being saints, are in reality of the fashionable religion, that is the French religion, as your lordship perhaps would call it, or in plain English, of no religion at all. It is certainly proper to give a court that had no name, the name of liberty; nothing seditious can be inferred from it, any more than any thing superstitious can be drawn from the streets named after the Roman Catholic saints.

Lord Justice Clerk. You are not come here to give dissertations either on one side or the other; you are to answer to facts, according to the best of your recollection, and according to the great oath you have taken, answer the facts that are asked of you?

A. My lord, I wish to pay all due respect to your lordship and this Court, but I consider myself as in the presence not only of your lordship, but also as in the presence of the KING of KINGS and LORD of LORDS; and therefore, as bound by my oath, to say every thing that I can consistently with truth, to exculpate this pannel, who I am sure is an innocent man.

Mr. Solicitor General. Many things you have now said, will, in my opinion, tend to do more hurt than good to the pannel.

Witness. Of that, the gentlemen of the jury will judge.

Lord Justice Clerk. Mr Solicitor General, it is needless to put any more questions to this man.

Mr. Solicitor General. I shall put no more, my lord.

(The witness was then ordered to withdraw.)

Lord Justice Clerk. Put him out then. Put him out!

William Ross sworn. Examined by Mr. Burnett.

Q. What profession are you of?—A. A printer

Q. Was you clerk in the Gazetteer office?—A. Yes.

Q. Who had the management of that paper?

A. Alexander Scott.

Q. Was you a member of the meeting of the friends of the people?

A. Yes.

[Page]Q. Was you a member of the convention?—A. Yes.

Q. And of the British Convention?—A. Yes.

Q. Did you act in any capacity in either of these meetings?

A. No.

Q. Do you write short-hand?—A. Yes.

Q. Was you in the use of taking down the debates in the convention?—A. I took notes in the convention.

Q. For what purpose did you take those notes?

A. For my own amusement.

Q. Did you not take them for the purpose of publication in the paper?

A. I did publish an account of them in the Gazetteer.

Q. Then you took those notes for the sake of publishing them?

Lord Justice Clerk. Take his own words; he says he took them for his own amusement, and published them in the Gazetteer.

Mr. Burnett. I believes you have a brother in this town?

A. Yes.

Q. Was he in the use of attending the British Convention?

A. Yes.

Q. Did he assist occasionally as secretary?

A. I cannot say whether he acted as secretary or not.

Q. Did he assist in any shape?

A. I have seen him taking notes, and writing.

Q. Did he take notes of the debates?—A. Yes.

Q. When you published the debates in the Gazetteer did you state them as accurately as you could?

A. I cannot say for the accuracy of them.

Q. Did you intend to make them as accurate as you could?

A. I did.

Q. Did you revise the proof sheets of the paper?

A. Sometimes I did, I had not always an opportunity.

Q. Are you acquainted with Mr. Gerrald, the pannel at the bar?—A. Yes.

Q. Was he a member of the British Convention?

A. I have seen him there.

Q. Did he take a leading and active part in the business as far as you saw?

A. I cannot say that I observed him take any leading part more than others.

Q. Did he make speeches?

A. I have heard him speak in the convention.

Q. So far as you recollect, did you take notes of his speech and publish them in the Gazetteer?

A. I published in the Gazetteer speeches of different persons, and I suppose Mr. Gerrald's among the rest.

Q. Did you ever see Mr. Gerrald act as preses?

A. I cannot recollect.

[Page]Q. Do you remember a motion made by Mr. Callender in the convention?

A. I think I do; but it is at such a distance of time that I cannot recollect much about it.

Q. Do you remember any debate with regard to a question of union?—A. I think I do.

Q. Do you remember if Mr. Gerrald made any speech upon that subject?

A. I remember his speaking; but what his speech was I cannot say.

Q. Look at that newspaper; is that, to the best of your belief, the speech that you wrote out for the Gazetteer?

A. I cannot say.

Q. This paper is published by you, is it not?

A. It appears to be so.

Lord Dunsinnan. Was it an accurate account? Did you intend to make it inaccurate?

A. I did not intend it, but from circumstances I am sure it is not accurate.

Lord Eskgrove. Did you intend to put any thing in that did not pass?

A. I had taken a cold and did not hear well; and, not being practised in the short-hand writing, I filled it up as I thought suited the occasion.

Mr. Burnett. Do you remember any amendments being made upon that motion of Callender's?

A. I have some recollection of this motion of Callender's.

Q. Was that motion passed as given in by him, or were there amendments? I will read it from your own paper, (reads it.) Was you present when these observations were made by Mr. Sinclair?—A. I was.

Q. And did you write that, as far as you recollect?

A. I think I wrote that part of the Gazetteer; but I cannot answer for the accuracy of it.

Mr. Solicitor General. Do you remember any thing about a Convention of Emergency being appointed to meet in certain cases?—A. Yes.

Q. Tell us the cases in which they were to meet?

A. I recollect something of it, from having told it in this Court before.

Q. Was the suspension of the Habeas Corpus Act one?

A. It was mentioned.

Q. Was a suspension of the act for preventing wrongous imprisonment mentioned?—A. I believe it was.

Q. Was an invasion mentioned?

A. I don't recollect hearing of that.

Q. Was there any thing about landing foreign troops?

A. I think foreign troops were mentioned.

[Page]Q. Was the passing an act similar to the Irish Convention Bill one?—A. Yes.

William Ross cross-examined by Mr. Clerk.

Q. Had you access to know that Mr. Gerrald was much indisposed, during the meeting of the convention, and frequently absent from the meetings?

A. I suppose Mr. Gerrald's health was not in a very good state; ever since I first saw him I imagined he was not in a very good state of health.

Q. I suppose you attended these meetings pretty regularly, by your taking down the debates in short-hand?

A. I was a good deal there.

Q. Did you observe that Mr. Gerrald was frequently absent from those meeting?—A. It might be so.

Q. Tell the jury again the circumstances on account of which you did not publish it as accurately as you wished?

A. I had not sufficient practice in short-hand to write it accurately; and another thing was, I was just recovered from a fever, and had a severe cold that I could not hear well.

Q. You mean to say, that what you published, is in substance the same that you heard in the convention, but that a good deal was filled up from supposition?

A. Yes, a great deal of it was; and I cannot now say what part of it was so filled up; I filled it up as I thought suited the nature of the question.

Q. Did the convention authorise the publication of those debates in the Gazetteer?

A. They did not; the convention had no concern with them?

Q. Do you know any instance in which it was moved that their proceeeings should not be allowed to be published in the Gazetteer?

A. I heard a debate one evening, it was late when I came in, concerning taking the votes, and I thought it alluded to me.

Q. Do you recollect any thing of a motion returning thanks to Mr. Scott for the publication of the Gazetteer?

A. To the best of my recollection I never heard such a motion.

Mr. Gillies. Was you present upon the 4th December, 1793. when the following motion was proposed: ‘That the moment of any illegal dispersion of the present convention, shall be considered as a summons to the delegates to repair to the place of meeting, appointed for the convention of emergency, by the secret committee, and that the secret committee be instructed to proceed without delay to fix the place of meeting?’

A. I cannot recollect that I was; but I think I have heard of the motion.

Q. Do you think, upon the 4th of December, that Mr. Gerrald [Page] was present, or do you remember his being ill at that time, and absent from the meeting on that account?

A. I cannot say; all that I recollect about Mr. Gerrald's absence is, that I always thought he was in a bad state of health, but when he was absent or present I cannot recollect.

One of the Jury. I would ask you, in the first place, were the convention acquainted with your intention to publish their proceedings, previous to publication; and, in the next place, did they ever complain of its being inaccurate?

A. I dare say they knew nothing of it previous to publication.

Lord Justice Clerk. But did any of them complain to you or Mr. Scott that they were inaccurately taken down?

A. I have already said, I came into the convention one evening, and there was a talk about the notes being taken, and the impropriety of it, and I thought they alluded to me.

Mr. Solicitor General. Did you, upon that, discontinue taking notes?—A. No.

Q. You continued taking them till they were dispersed?

A. The day they were dispersed I was taken before the sheriff.

Lord Abercrombie. Did any member, or did the convention, complain that you had not taken them accurately?

A. Yes; one member particularly spoke of my inaccuracy respecting the number of delegates from Sheffield, and a number of inaccuracies.

Q. What were the others?—A. I cannot recollect.

Q. What was the nature of the accuracies?

A. They were accuracies in words.

Mr. Gillies. Did Mr. Sinclair ever complain of the general inaccuracy of taking down the debates?

A. I do not recollect any particular person.

George Ross sworn. Examined by Mr. Burnett.

Q. You were clerk in the Gazetteer office?—A. Yes.

Q. You was a member of the British Convention? A. Yes.

Q. Was you in the use of assisting the secretary?

A. Yes; I sometimes assisted the secretary, and so did several other persons.

Q. Was your brother one?—A. No, never.

Q. Is that your hand-writing?

(Reads) "Citizen Gerrald appointed chairman," Yes, it is.

Q. Did you ever hear him make speeches in the convention?

A. I have heard him speak in the convention.

Q. Do you remember any debate about a Union.

A. I recollect something about a union of the societies of England and Scotland.

Q. Do you remember Mr. Gerrald speaking upon that subject?

A. I don't recollect whether he did or not.

[Page]Q. Do you remember a motion made by Mr. Callander about a Convention Bill?

A. Mr. Callander made a motion, that in case any motion was made in parliament to bring in a bill, such as the Convention Bill in Ireland, that the convention should meet and petition parliament to prevent it.

Q. Was that motion referred to a committee?

A. I do not recollect.

Q. What was done with it?

A. I do not recollect at present.

Q. Do you remember Mr. Sinclair making any amendments upon it?—A. I believe there were amendments proposed.

Q. By Mr. Sinclair?—A. I cannot recollect.

Q. Were those amendments passed?

A. I believe they were, but I am not very certain.

Q. Do you remember any thing about the amendments?

A. No, I do not.

Q. Read that?

A. (Reads) ‘Citizen Sinclair read the amendments upon Citizen Callander's motion.’ and then comes another person's hand-writing.

Q. How much of that is your hand-writing?

A. The three last lines.

Q. Do you recollect nothing at all about it?

A. I don't recollect the particulars of the motion.

Q. Was there any thing in Mr. Sinclair's amendment about a Convention of Emergency?—A. I do not remember it.

Q. Did any other body mention it?

A. I remember a convention of emergency being mentioned.

Q. And when was it to meet?

A. In case of a bill being brought into parliament similar to that passed in Ireland.

Q. In any other case were they to meet?

A. In case of Hessians and Hanoverians being landed in this country they were to petition parliament.

Q. In case of the suspension of the Habeas Corpus Act?

A. I do not recollect.

Q. Or of the act for preventing wrongous imprisonment?

A. I don't recollect.

Q. Or in case of a foreign invasion? A. I do not recollect.

Q. Read that? A. (Reads) ‘Citizen Gerrald, in a very energetic and animated address, expressed his happiness at the motion passed.’

Q. That is your hand-writing? A. Yes.

Q. Do you know the reason of that blank being left in the minutes?

A. I cannot tell that, but if you would have allowed the convention [Page] to sit and publish their minutes, it would have been filled up.

Lord Justice Clerk. Remember you are upon your oath?

A. I know that very well; I come here to tell the truth. All I know about it is, it must either have been left to be put in at a future period, or, from hurry, or some reason, it could not be put in at that time.

Mr. Burnett. Were the speeches made in the convention published in the Gazetteer?

A. Yes, what my brother took down.

Q. Did you ever read them in the Gazetteer?

A. I have read them, but I have very little time to read.

Q. Did there appear to you to be any thing stated in the Gazetteer that you did not hear in the convention?

A. If I had read them particularly over, I perhaps could have answered to that.

One of the Jury. Who corrected the speeches for publication?

A. I believe my brother, at least I suppose so.

Q. Did you ever correct them yourself?

A. I don't know whether I ever did or not, perhaps in reading over the proof I might.

Mr. Burnett. Here is a paper with "Vive la Convention!" and "Ca Ira, George Ross;" is that your hand-writing?

A. Yes.

George Ross cross examined by Mr. Gillies.

Q. Those words Vive la Convention and Ca Ira were written by you at one of the sections? A. Yes.

Q. Was Mr. Gerrald ever present at this section? A. No.

Q. Did the convention authorise these expressions?

A. No, they never did. I believe Mr. Gerrald never belonged to any of the sections.

Q. How came you to put these expressions?

A. There was no harm in that.

Q. Was it a fancy of your own?

A. It was, without any orders, just a fancy of my own.

Q. Was any thing of that kind stated in the minutes of the convention?

A. They were written by me before either the convention or the pannel could know any thing of them.

Q. Were they afterwards read over and approved of by the convention?

A. There were several members thought them very foolish.

Mr. Solicitor General. But they were read over and lodged with the secretary as official papers? A. Yes.

Mr. Gillies. Were these expressions, Vive la Convention and Ca Ira, read over to the convention, or only the report from the section?

A. It depended upon the person who read them.

[Page] Lord Henderland. When they were read, was the person reading in the habit of concealing any part of it?

A. I cannot say.

Mr. Burnett. Here is a paper, ‘first year of British liberty, one and indivisible, by the appointment of the rabble of Sans Culottes.’

Mr. Gillies. Was the pannel concerned in writing that paper?

A. I cannot say.

Mr. Burnett. Were not the whole convention divided into sections? A. Yes.

Q. At what time did the section meet, of which you was a member? A. In the forenoon.

Q. And they made their report in the evening? A. Yes.

Mr. Gillies. Did you ever see Mr. Gerrald at any of these sections? A. I never saw him at one.

(The declaration of the pannel was then read.)

Mr. Solicitor General.

Gentlemen of the jury, you are now about to exercise the most important function that private persons can be called upon to exercise;—to determine with regard to the guilt or innocence of the unhappy person who stands at this bar; and were the case at all difficult, in proportion to its importance, I should consider your situation, gentlemen, to be at this moment of a very hazardous and a very delicate nature. But you are not, upon this occasion, obliged as jurymen sometimes are, to wade through a difficult proof, through a variety of contradictory evidence, to balance deposition against deposition, and from a long train of circumstances, with a trembling step, to investigate where the truth lies. This, gentlemen, is a province which often falls to the lot of jurymen; and, to be sure, calls for the utmost attention with which the human mind can be vested. This is a case which commonly happens, where those who break the laws of their country trust to being able to conceal the offence of which they have been guilty for impunity, and of course it must require a difficult, a laborious investigation.

Gentlemen, the present case is of a different kind; the offences charged against this pannel were of too public a nature; they trusted not to concealing the truth for impunity, but to circumstances of futurity, by which they hoped to set criminal justice at defiance; but their hopes have been defeated, and I have this day to lay before you a proof so complete as that which I shall have the honour of stating to you.

Gentlemen, it will be necessary for me to [...]ke up more of your time than at first might be imagined, because the most material part of the proof you have not yet heard; it lies not so much in the parole evidence that has been given, as in the written evidence lying upon the table; and, before I enter upon the particular parts of the evence, I believe it will be proper to lay under your view a general [Page] statement of the written evidence which has been adduced, and the manner in which it has been authenticated; doing it in this manner in the beginning of what I have to say, will save repetitions, and will save you the trouble of again and again recurring to the same matter.

Gentlemen, the written evidence, upon which I chiefly rely, consists, in the first place, of the minutes of the convention, (call it scroll or what you please) made up by the secretary of the convention, and by his assistants. I say, gentlemen, this important document, fortunately for the sake of public justice, has been recovered out of the hands of the secretary, and is now lying upon the table. Gentlemen, when it was seen that the audacity of the British Convention had come to such a height that it was impossible for the magistrates and officers of the law not to take measures against them, one of the first steps resolved upon was, to take proper measures for getting hold of the written documents in Skirving's possession, and by those proper measures, so taken by the officers of the law, has this evidence been secured, and now lies before you, completely authenticated. The authentication of it is perfectly complete; you have the evidence of the persons who seized it in the possession of Mr. Skirving; you have them traced to the sheriff-clerk's office, and there you have them inventoried and signed in the presence of the parties; and therefore I shall hold these minutes as completely authenticated, and shall have occasion to refer to them again and again in support of the charge I am to maintain.

You have, in the second place, the evidence of the papers recovered out of the possession, partly of the pannel, and partly of his companion Margarot, which were got by Lyon, and opened by the key out of Margarot's pocket, in the sheriff clerk's office, all which now lie upon the table completely authenticated.

In the third place, you have the writings found in the possession of Sinclair, by Lyon the messenger, at the time he attended the execution of the warrant, put into a napkin, and by him carried to the sheriff-clerk's office, not inventoried that day, because Sinclair was indisposed, but inventoried two days after; they are also completely authenticated. I am sure, from the nature of the case, it is impossible any alteration could have been made, and among those papers you will find some very important and very decisive documents of evidence indeed. And,

In the last place, if it may be called written evidence, there is the evidence arising from those numbers of the Gazetteer which are also produced. It is very true, that in general, accounts given in a newspaper cannot be received before a jury; but you will observe, this is a newspaper in a very particular situation, published by a member of the convention who is now under sentence of fugitation on that account, and recognized by the convention itself. Gentlemen, it may be necessary to point out to you in what way this was recognized by [Page] the convention, as giving a fair account of their proceedings. I see there appears in the minutes many resolutions about supporting the Gazetteer, as a paper of their party; and, in one of the minutes, a person of the name of Colin Nory having applied for a copy of the minutes, the answer returned to him is this, that it will be unnecessary, because they will find them in the Gazetteer. I say then, you cannot have a doubt but that it contains as fair and accurate account as you can expect; at least accurate enough for all the purposes for which I shall read them.

Now, gentlemen having thus stated and given you some account of the evidence which I have to rely upon, I shall now proceed to consider the charge brought against this pannel, and the evidence by which I say every part of it is most completely and without contradiction substantiated. The general amount of the charge comes to this, that in the months of November and December last, a set of seditious persons assembled in this city, and assumed to themselves the name of ‘the British Convention of the Delegates of the People, associated to obtain Universal Suffrage and Annual Parliaments.’ That such a meeting was held in this city is a fact too notorious and too well remembered by every one of us to admit of contradiction; that this pannel was a constituent member of this meeting is equally clear and indisputable, having come here by delegation from one of the societies in London, I believe the corresponding society; but it matters not which, and that he attended and took an active part in the resolutions of those meetings will not be disputed by himself. I believe that he took an active part, and I must say, that from the talents which this gentleman has shewn, and from the character given him by his counsel, I have no doubt that his abilities and education qualified him to take a very distinguished part in the convention, as one of the leaders and prime movers among them.

Gentlemen, I say, if nothing more had been proved against this pannel than his taking an active part in the proceedings of a meeting of this kind, upon that I would maintain that he is guilty of sedition; because I say the meeting itself, from the very nature of it, and the part he took in it, is sufficient to constitute a charge of sedition against him. For what was this meeting? What is the name that they assume to themselves? They call themselves ‘the British Convention of the Delegates of the People;’ plainly conveying an idea that they were the representatives of the great body of the people at large, and endeavouring to vest themselves with legal authority. I say this alone is seditious and contrary to law: the people of Great Britain are represented by their delegates in parliament; there their representation lies, and an attempt of any other body of men to call themselves the representatives of the people is seditious—is illegal. A convention, it is very true, is not a name so entirely new in Scotland as might have been imagined; a convention was a legal name in Scotland, given to a legal body, [Page] invested by the sovereign with parliamentary powers, in some degree, at least with powers very little short of those vested in the parliament. We know it was a convention of the delegates of the people in Scotland which accomplished the Revolution: at that period, the people of Scotland alarmed at an indignant invasion of their rights, seeing their privileges in church and state invaded and threatened with the establishment of a despotic power; at that period, that memorable period to which we all look back, at least in name, with reverence, at that period, the people of Scotland, all that was great and good and wise in this country, assembled; at that time we needed not delegates from corresponding societies in London, there was then no occasion for inflammatory hand-bills and two-penny pamphlets; the people of Scotland know when their rights are invaded; at that time their constitution was attacked, and a despotic power threatened them; at that time a convention met of every thing great, respectable, and good; and they established the principles of the Claim of Rights, and provided against any encroachment upon that constitution, by such guards as appeared to them to be perfectly sufficient.

But, gentlemen, what is the object of this British Convention of the delegates of the people? We are told it is to obtain universal suffrage. I say, gentlemen, that universal suffrage is not only contrary to, not only not authorized by the constitution of Great Britain, but a complete subversion of that form of government under which we live, and which was established at the time of the Revolution. At that period our forefathers published to the world their ideas of government in the Claim of Rights; they declared openly and manfully what they thought sufficient to make them a free and a happy people, and to support the constitution. And, give me leave to say, and tell many of those people who talk so loudly of the Claim of Rights which they never read, that every right then stipulated for by our forefathers, every title of them is at this moment enjoyed by the poorest wretch that breathes in Scotland. If the gentleman can shew me one single instance in which the Claim of Rights is invaded. I will this moment sit down and give up the argument. But we are told that universal suffrage is a speculative opinion with respect to government; that wise men differ upon it, and that it is a part of the freedom which we enjoy to have the liberty of fairly discussing every political subject, and this among the rest. Gentlemen, this is a proposition which I will take the liberty to deny. I will take the liberty to say, that the maintaining the freedom of discussion of political questions to that length which is subversive of the constitution is most illegal and most unconstitutional; for, what is the situation in which we all stand? We are not here in a state of nature, we are not savages, and now for the first time to chuse a constitution for ourselves; not like a man shipwrecked upon a desert island, free to chuse any mode of government we please. No; we are all o [...] [Page] us born subjects of the British empire, subjects of Great Britain, which is the most inestimable blessing, and the most inestimable birth-right that can be bestowed upon us. From our birth we owe allegiance to the constitution established at the Revolution; we are not to venture to say that another constitution would do better in its place. I say, by law we owe allegiance to it from our birth, and by law we are bound to prevent it being encroached upon, and that no body of men have a liberty to say we will indulge in speculation, and there is no harm in speculation, I say, that subjects of Great Britain, born under allegiance to the constitution, have no such liberty. Now, gentlemen, I ask was universal suffrage any part of the constitution established at the Revolution? Was it ever so much as thought of? Was it ever so much as mentioned among those rights which our ancestors have established? Not a word. The patriots of those days to whom we are so much indebted, had too much good sense not to see that any scheme of that kind was inconsistent with that species of government, composed of monarchy, aristocracy, and democracy, which was then established; they saw that any scheme of that kind would be inconsistent with it, and that it would be dangerous and chimerical: but what their good sense led them to see and to shun we are able to judge of upon much surer grounds. This topic is no longer a matter of theory, in which men will indulge, as they please, their different opinions; it is a matter which has been brought to the test of experience, in the only case in which it has been tried since the world began (for the Anglo Saxon government knew of no such thing): one experiment has been tried, in the government of France, and the result of that experiment I shall not mention; it is a subject from which I turn aside with horror and detestation, and yet this is the time after this experiment has been tried, after it has produced those horrible mischiefs in a neighbouring country, which we cannot think of without shuddering, this is the very time when this British Convention will lift up their own mad opinions against the experience of ages, when they say in spite of the Revolution, in spite of the principles then established, and in spite of what has happened in France, we will obtain this universal suffrage, which, if obtained in any country in the world, would just produce the same consequences, or nearly the same that it has done in that unhappy ill-sated country which I just now alluded to.

Gentlemen, I shall only suppose, that in place of associating themselves for the purpose of obtaining universal suffrage, as they tell us, suppose they had entitled themselves an association, in order to obtain a demolition of kingly power and nobility; to be sure they might have told us it was mere matter of speculation, that many good men had thought we were much better without kings and without nobles; but I am sure, living in this country and under the constitution of Great-Britain, any proposition of that kind maintained by any body of men, would be illegal and seditious.

[Page]Gentlemen, having shewn you that the object of this association was illegal, let us now consider the means which they took to accomplish their object, which include the different acts of sedition charged against this pannel, because every one and all of those steps which they took, toward obtaining this favourable object, are gross and aggravated instances of sedition.

Gentlemen, the title which this meeeting assumed to itself I have already spoke of; and which was, I apprehend, in itself illegal, as calling themselves the delegates of the people, that is to say, the delegates of the people at large.

But the libel further states, ‘and did in the whole form and manner of their procedure, as well as in the principles they avowed and propagated, clearly and unequivocally demonstrate, that their purposes were of the most dangerous and destructive tendency, hostile to the peace and happiness, and tending to subvert the constitution of this realm, imitating in the form and tenor of their proceedings the convention of France, the public and avowed enemies of this country, and with whom Great-Britain then was and still is at war, the members calling each other at their meetings by the name of Citizen, dividing themselves into sections, receiving reports from said sections,’ and so on. Gentlemen, for evidence of this, besides the testimony of the witnesses that was delivered in your presence, I only refer you to the minutes of the convention which will be lying before you when you deliberate upon this subject. Turn to every page, and you will see there is no part of it the language of Great Britain, but all of it this new fangled jargon which has been accompanied with so much confusion. We find Committees of Finance, of Organization, Primary Assemblies, and so on. You will find, by looking at the minutes, or these reports of sections found in the possession of Skirving, the most complete evidence of this; and I believe there is not a single phrase of mischief, consecrated to every thing that is bad in France, but has been adopted by the members of the British convention.

Gentlemen, it is very true, that this mode of imitation is not, by the law of Scotland, a crime in itself, nor do I charge it as such; it is only mentioned in the libel as a circumstance of evidence, in order to shew to the jury the general views and intentions of the parties. There is nothing wrong in the word convention, there is nothing wrong in organization, or in liberty and equality; there is nothing wrong in these words nor any other in the whole English Dictionary; it is the improper association of them which I apprehend here, go to mark the dark and dangerous designs which these people have not been able to conceal. Prudence might have told them, that whatever alterations they meant to make in this country, they should not have borrowed these expressions of France; but the fury of reformation was so mad, and so rapidly did the torrent run, that they were always speaking out the beloved object they had in view; [Page] and thus we have Committees of Finance, of Instruction, of Organization, and all the rest.

Gentlemen, you were told the other day, by a very ingenious counsel on the part of Mr. Gerrald, that this imitation of French manners was by no means new in this country; that something of the same kind had taken place before, and nobody ever found fault with it. It is true, we may all remember when all the fopperies of the fashions of France were our objects of imitation; but did they endanger the constitution of this country? Was it ever pretended that they were to give laws to Britain, and alter her constitution? Did the taylors, the milliners, or the frizeurs ever pretend to legislate for this country? Did they ever pretend any thing but to make our coats or powder our heads? That species of imitation may be ridiculous, as it certainly was; but it was perfectly innocent; it had not the smallest resemblance to that of which these gentlemen have been guilty; it no more resembles it than if a man should chuse to please himself with the diverting tricks of a monkey; this might be innocent, but it does not follow that in society he would be allowed to imitate the savage ferocity of a tyger; the one may be ridiculous, but the other is detestable and dangerous: it is on that account, and not because it was an imitation of French manners, that it is charged as pointing out the mischievous views and intentions which actuated the minds of these people.

Gentlemen, the libel next proceeds to state several speeches made by this pannel, who, by all accounts, appeared to have a talent for public speaking, of which you in all probability will soon have a specimen; and he certainly has a talent for composition; of that we can all judge. It is stated, that on the 21st of November, he made the speech which is engrossed at length in the libel, and which has been read before you this day. Gentlemen, the evidence that he made the speech does not rest solely on the testimony of the Gazetteer, [...]hough even that I should have thought sufficient evidence to establish the general import and substance of the speech; because, I will read to you an abridgment of that speech, taken from an authority which the gentleman will not pretend to question, I mean the minutes of the convention, which is just as bad, or rather worse if any thing, than that published in the Gazetteer: (reads from the minutes) ‘Mr. Gerrald observed, that whatever difference of opinion might exist within those walls, we can never forget that our friends and our enemies are in common, and that our object is equally the same; —he took a view of the means we should take to gain our object—, entered fully into our right to Annual Parliaments—minutely investigated the Principles of Government—asserted that the end of all government is the good of the governed,' which is certainly very true—' that if money is taken out of our pockets, it signifies not whether it is by the robber on the heath, or the monarch on the throne—made many remarks on the Revolution-settlement, and the benefits derived from the Revolution, but clearly demonstrated [Page] that they are now totally taken away,’ which agrees with the words in the Gazetteer, ‘that the present form of government no more resembles the Revolution than a dead putrid carcase does a living body.’ Now, if you compare these together, you will find, that this short account is a most faithful and accurate abridgment of Mr. Gerrald's speech, as stated in the Gazetteer, which I shall not trouble you with reading again—there are just two single passages I beg leave to call your attention to: ‘It was justly observed by Citizen Callander, that, soon after the union of the crowns of England and Scotland, the people of both countries were deprived of some of their most valuable privileges. It was from that period that the greatest encroachments began to be made on public liberty, but, if that union has operated to rob us of our rights, let it be the object of the present one to regain them. If the event exists for our shame, as it has existed for our chastisement, let it also exist for our instruction.’

Now, Gentlemen, I here say, that that is a most abominable libel upon the union of the two kingdoms, one of the most auspicious events that ever happened, to say, that 'from that period, the greatest encroachments began to be made upon public liberty, is an assertion that is most false and seditious; for since that period there have been no encroachments upon public liberty, and no individual citizen has been deprived of any of his most valuable privileges.

Gentlemen, the only other passages that I shall take notice of in this speech is this: ‘It has been observed, that the Revolution of 1688 did not produce the advantages which might have been expected from such an event. It is true that, at the Revolution, universal suffrage was not dispensed to the people with that liberality which it ought to have been; but still, the present form of government, in my opinion, no more resembles the Revolution, than a dead putrid carcase does a living body:’ which is just saying in other and more florid words what is stated in the minutes, that the blessings obtained by the Revolution-settlement were now totally done away.

Gentlemen, the next branch of the indictment which we shall proceed to, which is the most material and the most inexcusable of the whole, which carries the deepest guilt against this pannel, is what relates to Citizen Callander's motion, the proceedings of the convention which followed upon it, and the share which this pannel took in its proceedings.

Gentlemen, in order that you may have a complete view of this important branch of the cause you have to try, I shall state from the minutes, progressively, the history of the proceedings which took place with regard to this motion of Citizen Callander's. The business originated in a motion made by Citizen Callander, a gentleman now under sentence of fugitation, for the part he took in this business; he did not dare to stand his trial. Citizen A. Callander [Page] moved, ‘That in case the minister bring into the Commons House of Parliament a motion for a Convention Bill, it shall be noticed immediately to the delegates.’ This is the general substance of Mr. Callander's motion, as taken down in the minutes of the convention, upon the 25th of November; and upon the 27th it is debated in the convention. ‘Mr. Callander's motion being then taken under consideration, amendments were proposed by Citizens Downie, Sinclair, Margarot, and Gartley. Citizen Margarot was for adopting the spirit of the motion, but thought it more expedient to postpone it till the conclusion of the convention business, and moved that a committee, consisting of the mover, seconder, and those who had moved for amendments, be appointed to draw up a motion that may probably meet the ideas of all. After some consideration it was agreed, upon the motion of Mr. Callander, that the sense of the house should be taken, first upon the spirit of the motion, secondly, upon the words of the motion, and thirdly upon Mr. Margarot's motion. Upon the first motion it was carried unanimously to adopt the motion as to its spirit; secondly, by a great majority not to adopt the words of it; and thirdly, that the amendments referred to a committee as above.’ So that you see, gentlemen, the result of this debate upon Callander's motion is to adopt the spirit of it, but with respect to amendments to refer it to a committee.

Then, gentlemen, let us see what the minutes say further upon this subject: "Upon the 28th of November the motion is again taken into consideration, and the report of the committee, to whom it was referred to make the amendments upon Callander's motion, is brought up: ‘Citizen Sinclair read the amendments upon Citizen Callander's motion, as agreed upon by the committee, and it was agreed upon the motion of Citizen Blank, that the house should resolve itself into a committee for its mature consideration. In the course of the conversation, Citizen Brown gave a history of the Habeas Corpus Act. After an excellent discussion of the question, pertinent remarks, and amendments the convention was resumed, and the whole as amended, being read over, the members stood upon their feet, and solemnly and unanimously passed the resolution as follows.’— After this there is a blank of a page and upwards, which I shall afterwards fill up to your satisfaction: in the mean time I shall go on with the minutes.

‘Citizen Gerrald in a very energetic and animated address, expressed his happiness at the motion passed; Citizen Brown followed him in a manly speech, and proved the influence of the executive government over the parliament; Citizen Margarot then read, and proposed the following motion: That a Committee of three and the secretary, be appointed to determine the place where such convention of emergency shall meet, that such place shall remain a secret with them, and with the secretary of the convention, and that each delegate shall, at the breaking up of the present session, be entrusted [Page] with a sealed letter, containing the name of the place of meeting; this letter shall be delivered unopened to his constituents, the receipt of which shall be acknowledged by a letter to the secretary preserved in the same state until the period shall arrive, at which it shall be deemed necessary for the delegate to set off. This motion was seconded by Citizen Moffat and passed unanimously.’ Now, gentlemen, let us go back to the blank, which I shall now be able to fill up, as I believe, to the full satisfaction of every man who hears me; the blank is to be filled up by the amended resolution proposed by Sinclair, which amended resolution is one of the papers, two copies of which were found in Sinclair's possession when he was apprehended by Lyon, and carried to the sheriff-clerk's office, there inventoried, and now lie upon the table: one of them appears to be a good deal blotted and interlined, which is entitled at the back, in the hand writing of Mr. Aitcheson, ‘Mr. Sinclair's amendment of Mr. Callender's motion’ and that important paper I must now beg to read to you, fully authenticated as it is: ‘Resolved that the following declaration and resolutions be inserted at the end of your minutes.’ And you will now attend to a paragraph in the Gazetteer, which Ross took down, and which he says he does not recollect, but which you have in the minutes, in the Gazetteer, and in the indictment. ‘Resolved, that this convention, considering the calamitous consequences of any act of the legislature which may tend to deprive the whole, or any part of the people, of their undoubted right to meet, either by themselves or by delegation, to discuss any matter relative to their common interest, whether of a public or private nature, and holding the same to be totally inconsistent with the first principles and safety of society, and also subversive of our own and acknowledged constitutional liberties, do hereby declare, before God and the world, that we shall follow the wholesome example of former times, by paying no regard to any act which shall militate against the constitution of our country; and shall continue to assemble, and consider of the best means by which we can accomplish a real Representation of the People, and Annual Election, until compelled desist by superior force.’

"And we do resolve,

That the first notice given for the introduction of a Convention Bill, or any bill of a similar tendency to that passed in Ireland, in the last session of their parliament;

Or any bill for the suspension of the Habeas Corpus Act, or the act for preventing wrongous imprisonment, and against undue delays in trials in North Britain;

"On in case of an invasion;

Or the admission of any foreign troops whatsoever into Great Britain or Ireland; all, or any one of these calamitous circumstances, shall be a signal to the different delegates to repair to such place as the secret Committee of this Convention shall appoint; and [Page] the first seven members shall have power to declare the sittings permanent; and twenty-one shall constitute a convention, and proceed to business.

‘The convention doth therefore resolve, That each delegate, immediately on his return home, do convene his constituents, and explain to them the necessity of electing a delegate, or delegates, and of establishing a fund without delay, against any of these emergencies, for his or their expence; and that they do instruct the said delegate, or delegates, to hold themselves ready to depart at one hour's warning’ This is the resolution which, even the audacity of the convention dare not insert in the minutes, and I am not surprised at it—a more daring insult to the established government of the country never existed. Gentlemen, upon the first part of it, an attempt, or something like one, was made by the counsel to quibble away the import of it, that they would pay no regard to any act of the legislature; that is, that as soon as such a bill was brought in, they would meet, and endeavour to prevent it from passing; but if you attend, you will see this could not be the meaning of it, it is, as plain as words can make it, a resolution upon the part of these gentlemen, to bid defiance to the legislature of Great Britain. That we who know better than you, will oppose force to force, and instead of paying regard to it, will make it a signal for us to hold a Convention of Emergency, to be held at a place unknown to the parties themselves to be fixed by a secret committee, and that each of the delegates shall be entrusted with a sealed letter containing the name of the place of meeting. This is one occasion of the meeting of the convention of emergency, but it is not the only one; there is another which well deserves your serious consideration; one of the cases specified in which this convention were to meet, in a place unknown to any but a chosen few of their own number, is in case of an invasion. Gentlemen, this is not entirely a fancied case; we all know that an invasion of this country has been projected, was then, and is yet in agitation, (when it will be attempted God only knows) by its most inveterate foes, not as in former times proceeding from a rivalship in arms—a contest of ambition—no, the object of the invasion as declared by themselves, is no less than to annihilate the Government of Great Britain; to cut it up as a monstrous piece of tyranny, to destroy that favorite of liberty and of wisdom that was reared by our ancestors, and which has so long been the glory and pride of every Briton and the admiration of mankind; and which, for that reason, has been so long the envy of our foes. This constitution, in the preservation of which is involved every privilege, every public right, and I will add to it every domestic comfort, is by this invasion to be swept away at once; a calamity which, if it should happen, (which I trust it never will, but no thanks to those gentlemen) than compared with which, what is there in the history of man to equal it? Of all the calamities, of all the punishments that ever were inflicted upon a nation, if the whole vials of divine vengeance were to [Page] be exhausted upon any people, or all the calamities that can proceed from the convulsions of nature, or pestilence, or still more desolating famine; I say the whole of these calamities compared with a successful French invasion, I might for my own part, consider as visitations of kindness and compassion; and yet this is one of the cases which their resolution provides for. This is the crisis, this is the moment which, if ever it should occur, and it may, God knows how soon, when the power of Britain must be exerted. Let me suppose the event, that the French assembled near our coasts; suppose them (which God forbid) either to vanquish Britain or defeat her vigilane and arrive, and prepare to land—in that awful moment, when the armies of Britain, I trust, under their sovereign shall muster upon the coast to repel the foe, shall carry with, them the wishes of every good citizen, every thing that is wise and good in the country giving every assistance in their power; in that dreadful hour where are we to find the British Convention? Do we find them assembling under the banners of our constitution? No, they tell us, that it is their resolution, that they have declared before God and the word, that in that hour they will, conspirator-like, slink into a corner, shun their fellow-citizens, form a body of their own, and meet in a place where they themselves know not, and is only to be unfolded by the opening of a sealed letter when the hour arrives.

Gentlemen, though the mind of man can only be viewed by that All-seeing Eye which can pierce into it, yet a human tribunal can judge of intentions from actions; and taking the actions of those men, a proved by the most authentic documents, they were dark, they were dangerous.

Gentlemen, it has been said that it might be their intention to unite themselves to repel a foreign—to repel an invasion. Had that been their intention, would they have chosen to secret themselves from the rest of their countrymen? Were they so mad (and mad I admit they were in many things) as to think that a hundred men, or whatever their number was, were sufficient to repel an invasion? No; to a foreign foe, such a force as theirs must appear contemptible. It is true, they were formidable, not by their numbers, nor by their arms, but they were formidable by being an enemy in our own bosoms. This, this alone made them formidable. As to its being their intention to repel the invasion, it is too eccentric, I am sure, to gain credit from any man.

Gentlemen, what mighty motives had this convention to stand forth to repel this host coming against us? Suppose the period arrived, they behold the power of Britain assembled under its lawful sovereign; there they see a king, a government which they consider as no better than a dead carcase; there they see an aristocracy which is hateful to them. Do they see universal suffrage? No; it is that which can never, be allowed by the constitution of Britain. But what is the case? They meet in a dark place. What do they meet for? To obtain universal suffrage. What do [Page] the invaders offer them? Universal suffrage—you shall have it from the pure fountain head, from the source of every thing that is wise of political instructions, from the fountain head, the Convention of Paris. You shall have no aristocracy—you shall have no religion, if you please; but of that I say nothing—you shall have primary assemblies—you shall have every one of these things which you appear to be so remarkably fond of. Gentlemen, it is unnecessary for me to carry the matter so far as to suppose that this pannel or the other members came to the dark, the desperate, the wicked resolution of joining the foes of Britain, in case of an invasion, it is by no means necessary. But supposing they meant to go no further than what they declared, to meet in a secret place, unknown to the government of this country, perhaps to negociate with a foreign enemy; but in either way their intention was dark, it was wicked, it was criminal. Gentlemen, with regard to many of the members, I do in charity believe, that they concurred in this resolution, not seeing the precipice on which they stood, unconscious of the end to which it tended. But I am sorry to say that is an apology that will not do for Mr. Gerrald; he is a man who supports this resolution, and follows it up by an inflammatory speech; it is impossible that he could be ignorant of the point to which it led; it is impossible he could be innocent, he must be more or less criminal, and the smallest criminality that can be ascribed is very great indeed, far more than sufficient to support the charge of sedition which I have made against him.

Now, gentlemen, the next thing is the speech of which the minutes very shortly say, ‘Citizen Gerrald, in a very energetic and animated address, expressed his happiness at the motion passed.’ Gentlemen, I shall only read one or two expressions in it, and you will attend to the occasion upon which it was made; it was made just after the convention had passed this solemn resolution and declaration before God and the world; in this state, when their minds were in this situation, in a state of avowed hostility, Mr Gerrald rose up and made a speech, adding fuel to the flame, he says, ‘Though I could not get a copy of this bill, the heads of which I have read are sufficiently explanatory of its detestable principles; and I hope the measures which have been adopted this night will convince the minister, that we are determined to guard against every attempt that may be made to deprive us of our rights. And though by some it may be thought a bold, by some a daring measure, yet it will be found the best for securing the peace of our country. For if such a law were suffered to pass, if men were not allowed to utter their complaints, a number of fierce and rancorous passions would arise, and we would seek to appeal to that last terrible decision, the event of which is uncertain, but which God and nature allows.’

‘If the servility of the people had been less; if they had dared to meet, and, in place of murmuring, to have told their rulers that there was danger in seeking to deprive them of their liberties, [Page] we would not have had to adopt this resolution to-night; but when I saw the calm deliberate countenances of all present, and the solemn manner in which it was passed, I was convinced that it would not only be a resolution of words, but a rule of action.’

Gentlemen, upon the reading of this speech, you will consider that it was addressed to a number of persons who had, a few minutes before, come to the resolution of flying in the face of the legislature, which is so plain that I shall say no more about it.

Gentlemen, I have now gone through the charges in the indictment, and I think I have established every one of them in such a way as must have given you satisfaction. The only part of the charge that remains is, that at the time the magistrates came to disperse them, even after that Mr. Gerrald again takes the chair, and would not leave it till he was turned out; they declaring that the dispersion was of no consequence, for they had declared themselves permanent. Upon that it is unnecessary to say any thing, because you heard the evidence was given upon it; and you will give it such attention as you think proper.

Thus I have endeavoured to lay before you what appeared to me to be the most material parts of the charge against this gentleman, substantiated by that evidence which appears to me so satisfactory; and as the pannel has produced no evidence, it is impossible for me to see what defence he may make. I shall only say, in general, that if he disputes the fact, I refer you to the evidence now lying upon the table. If he says that the facts, supposing they are true, are not criminal, I appeal to your own common sense, I appeal to your own judgments, to the judgments of every court of law who have ever decided in criminal cases. If he should say, notwithstanding all (for his counsel insinuated something of the kind,) that he acted from the purest intentions, and that his intentions were innocent, I must tell you, that with regard to the absolute purity of his intention, it is impossible for human penetration to see; that must be reserved in every case to the last day, when every truth must come out; but you, as well as every other tribunal, must judge according to the evidence and according to the facts as they lie before you; and from those facts I think I have satisfied you, that their intentions were seditious, wicked, and criminal. I shall trouble you no further upon this case, but leave it to your decision. I have stated the grounds upon which I think myself entitled to demand a verdict of guilty.

MR. GERRALD.

Gentlemen of the jury, Mr. Solicitor General has told you with great truth and solemnity, that the cause of which you are at present the judges, is one of the most important which ever came before man for the purpose of determination.

[Page]Gentlemen, if at an early period of my life it had been announced to me, that the task of defending the rights and privileges of nine millions of people would have devolved upon me, a simple individual, I should certainly, from my youth up, have devoted my whole time, with unremitting application, that I might be enabled to execute so sacred and important a trust. Unfortunately, though a considerable period has intervened between the time of my being served with an indictment and my trial, yet I have been, in a great measure, distracted by various avocations, and my health much impaired by continual sickness. From my duty, however, no earthly consideration shall induce me to shrink. I this day, come forward to advocate a cause, that which the sun never shone upon one of more deep and general concernment; and, impressed with this awful consideration, I advance to it with a tremor that shakes every fibre of my frame. But whatever be the result of this day's deliberation, I shall always look back to the part, which I have taken, with the consciousness of a man who has endeavoured well; for, however weak the flesh may be, the spirit is strongly inclined to the service.

Gentlemen, the state prosecutions which agitated and disgraced the middle of the last century, were by no means of the same importance with those of the present day.

The contest between John Hampden and the crown rested solely upon this question; whether the crown or the parliament should have the power of raising the supplies; but it was always allowed that the object of these supplies was the advancement of the general happiness. The cause which you are called to decide upon, is not merely a matter of pecuniary consideration; you are called upon decide whether man, who is by his nature social and rational, shall meet in society for the purpose of improving his faculties, and exercising those powers of reason which the common Father of us all has given us, to enlighten our understanding and enoble our hearts; or whether by relinquishing every thing that is virtuous, every thing that is praiseworthy, every thing that is valuable in the condition of our humanity, we shall be reduced to a situation beneath the beasts that perish.

Gentlemen, as an Englishman, I will not say a stranger in this country, for, from being members of the same community we have the same friends and the same foes; and the articles of the Union, I believe, say, that the natives of both countries are entitled to the same privileges—yet as an Englishman, I cannot but consider my situation as varying in some measure from that of a native of this country. In England, had I committed the supposed crime charged against me, the process would have been very different. The present legal process too much resembles those instituted in the last century, when prosecutions upon prosecutions were instituted for the purpose of destroying the freedom of our country: I say, the proceedings of the High Court of Justiciary too much resemble the proceedings of the Star Chamber before it was abolished. We have not in this country the advantage which we have in England of the bills [Page] being originally found by a grand jury. We have not afterwards the privilege of a petty jury selected entirely by the sheriff; but I understand that the assize is first appointed by the public prosecutor, from which fifteen are afterwards selected by the court.

This circumstance did not however deter me, (though it was frequently argued amongst other arguments) from coming down here to take my trial. No; when the scourges of the late prosecutions, and the melancholy fate of the prosecuted were held over my head, I was not to be deterred from doing my duty; though by many I was considered as devoted a victim as Regulus departing into voluntary exile, or like Curtius plunging into the gulf for the salvation of his country.

Gentlemen, informations began in England, during the reign of one of our worst princes, Henry VII. who filled his private coffers by the plunder of his subjects. In conformity to this process, I am sorry to acquaint you, that I was brought before the sheriff of this county by the operation, not by the regular service, of a warrant. When I was taken up I asked for the warrant, but it was refused. My temper, I trust, is mild and peaceful; though, in England had a similar process taken place, the officer might have paid for his irregular conduct with the forfeiture of his life. But that was not my purpose; for as truth is my only object, so reason is my only weapon. My papers were taken out of my bureau and carried before the sheriff. Knowing that those papers could contain nothing to criminate me, I claimed them as my property, and signed the claim without any hesitation. I am shocked, however, to think that so gross a proceeding should take place in any country as a disclosure of secrets by taking private papers. Since the original seizure of my papers, a private letter has been arrested in its passage to me from London, and in an attempt to see the contents, has been destroyed without it's ever reaching me. I demanded what could be the object of this procedure. I was informed that it was for the purpose of collecting evidence against me. This oollection of evidence then, it seems, may be made with impunity in Scotland, by as gross a violation of the laws of the land, as certain other collections are made, of which the collectors when taken are afterwards hanged.

Gentlemen, the Solicitor General acknowledged with much candor, that if he could not prove the criminal intention, he could prove nothing. It is upon this grand principle that I rest my defence; it is neither upon legal chicanery nor legal quibbles, these would be unworthy of the cause in which I am engaged. If the criminality of the intention alone can constitute the offence, either in a legal or moral point of view, I trust I shall be able to make out so clear a case, notwithstanding the calumnies which the lying breath of rumour may have cast upon me, that you yourselves, discarding prejudices which it is possible you may have imbibed, will retire from this Court as fully satisfied of my innocence as I am myself.

[Page]Gentlemen, if fugitation is in the eye of law deemed a presumption of guilt, appearance by parity of reason must be deemed a presumption of innocence. Notwithstanding the pressing solicitations and strong inducements held out to me by the society who delegated me, and who would have paid my bail, I determined to come down and appear before you. Can there then exist a stronger proof of the consciousness of the puriry of my own intentions, than my having voluntarily appeared before that tribunal which I might have shunned, and from which innocence itself has fled?

Gentlemen, though it does not come immediately before you, I do conceive that by being brought to trial at this particular time is a harsh and rigorous measure; and it is rather remarkable that on the last Monday, a period which was marked for the first day of my trial, and when I appeared here before the Court, our Representatives in Parliament were in fact sitting in judgment upon these very judges; nor do I think it would have degraded the dignity of their functions, if they had acted with less heat and more deliberation, and had patiently waited till the result of the proceedings of the High Court of Parliament had been known upon their conduct.

Gentlemen, the history of Briton furnishes us with abunda [...]t instances of the interference of the legislature to correct judicial errors. In the case of Hampden, which was a period which must be dear and valuable to every Englishman, the parliament, by their interference, prevented the robbery of the subject, by the arbitrary fiat of the crown. It is not fit, I own, that they should interfere where the public is not deeply interested; but where it is, they are bound to do so in justice to their representatives, and they always have done so. Nay, they have gone further, and where the necessity was great, they have even come to a resolution in point of law, contrary to the judgment of a court of law, and to the opinion of ten out of twelve judges. In case the judges violated the law (a circumstance which in the late cases is yet to be determined,) or where they suspected any undue influence, either in the exertion or the support of the prerogative, by officers, of the crown, or by judges, they have always interposed. Is it possible to forget or to controvert either their conduct, or the propriety of it, in the great case of ship-money, which was first brought into question by Mr. Hampden, a private gentleman, who, so far from regarding the trumpery, petty-fogging consideration of damages, declared, that he would not pay it were it but one farthing, if pretended to be demanded of right, and by colour of law; and yet proceeded, according to my lord Clarendon's own account, with great temper and moderation in that suit. His lordship adds, ‘and all the world knows, that never any cause had been debated and argued more solemnly before the judges, who, after long deliberation among themselves, and being attended with the records which had been cited on both sides, delivered each man his opinion and judgment publicly in court, and so largely, that but two judges argued in a day.’ Ten of them solemnly pronounced their opinion [Page] for the right claimed by the crown, and which if had regularly exercised for four years immediately preceding: but, as Lord Clarendon observes, (Lord Clarendon was a monarchical man, much attached to Charles I.) ‘the judgment, proved of more credit and advantage to the gentleman condemned than to the king's service, however, (adds he) these errors in government were pot to be imputed to the court at that time, but to the spirit and over activity of the lawyers of the privy council, who should more carefully have preserved their profession and its professors from being profaned by those services which have rendered both so obnoxious to reproach.’

Gentlemen, this circumstance, I apprehend, is an object very important for your consideration, and which, I trust, will have some influence in the guidance and direction of your verdict; inasmuch as you find that in England, in a case where ten out of twelve of the judges gave their opinions against the defendant, yet, still their sentence was reversed at a higher tribunal, that of Parliament. The sentence was reversed, and even Clarendon, a monarchical man, who comes down to us under great purity of character, tells you, ‘that these prosecutions were instituted and carried on by the crown lawyers, who were over active in the execution of their duty, and had subjected them and the profession as obnoxious to reproach.’

Gentlemen, the indictment contains against me four charges I shall endeavour briefly (in order that I may take up as little of your time as possible) to state these charges specifically, and to give as specific answers to those charges, as the combined operation of my understanding and my conscience directs me to give.

The first charge is of so extraordinary a nature, that it was some time before I could bring myself to sit down to a serious refutation of it; and upon any occasion not so important as the present, I should either have combatted it with the weapon of ridicule, (of which, even it is hardly deserving) or have thrown it behind me with silent contempt. I have been charged with making use of French terms, though it has been proved, as I shall presently shew, that this charge, ridiculous as it is, is also fallacious.

Gentlemen, it is a most extraordinary thing, that such a charge should be made in a country, against a native of that part of the kingdom, I speak not of Scotland, but of England, where all our old law proceedings are in that very language. The writings of the venerable Littleton, whose tenures contain the whole doctrine of our law of landed property, upon which my Lord Coke, the great Oracle of English Law, has written his Commentaries, are in the French language.

Britton, and other writers of as great authority, though of more remote antiquity, and who are deemed the legal patriarchs (as it were) in the history of jurisprudence, wrote in French; and the king himself, even at this period, never gives his assent or refusal to [Page] any act of parliament which binds the subject, without expressing himself in the language of that country.

Gentleman, I say not this for the purpose of vindicating myself from these charges, for it has been proved to you clearly, from the evidence of Ross, that these French terms were of his own insertion. But I cannot help thinking that a spirit of malevolence dictated that part of the charge, and that these invidious insertions were made for the purpose of insusing into your minds an idea that I wished to co-operate with F [...]ance, with whom we are now at war: and I am the more authorised to state this as the first indictment, with which I was served, was totally devoid of these charges, and they have only been introduced in the second. But these terms were the pepper and salt to season the dish for the gratification of the palate of the crown lawyers, and I, it seems, was to be offered up, like another Theyestes, as a victim for the banquet.

Gentleman, the next charge against me in that of having used the word citizen. It was said upon a former occasion by the Solicitor General, that the use of the term was in itself innocent, and in many circumstances might undoubtedly be proper; but here, again he made a distinction. If a man, in the year 1745, (said he,) had walked the streets with a white cockade, it would have been highly criminal; but now the action would be perfectly harmless, because there is no party existing amongst us of an attachment to whom it might be interpreted as an emblem.

But, gentlemen, I hope your understandings will not be perverted by language of this kind, as you must see a most material and essential difference between marching up the streets with a white cockade, and using the term citizen. The using of this term, though it may by some be deemed ridiculous, can, by none, be judged criminal. The word citizen is a term of peace, and denotes that relationship in which we stand to each other, as members, of the same community, for the performance of our civil duties; whereas the wearing of a cockade is the emblem of a military occupation, and in the year 1745 was a particular and avowed emblem of hostility to the government of the country.

Gentlemen, the next part of the charge is, that these meetings were illegal and seditious. Now their illegality, I apprehend, must depend either upon one or other of these three principles; either on the name Convention which we took, the principles which that convention intended to establish, or the manner in which they conducted themselves after they met. Take away these three things and no charge remains, consequently no ground of criminality. With regard to the first, our assumption of the name of Convention, I am sure your own understandings will inform you, and it is a position to which the crown lawyers have assented, that to take a particular name does not constitute a crime. Many respectable gentlemen, in point of fortune and talents, met in a Convention, [Page] expressly so called, for a Reform in the Scottish Boroughs, in Edinburgh, and though their views were different from our, still it shews, that the bare assumption of that name does not constitute an offence in the eye of the law. Our crime must then depend either upon the principles which the British Convention intended to establish, or the manner in which they conducted themselves when met.

Gentlemen, in a cause so sacred as the present, I would scorn to tell a lie to save my life. I boldly avow, and I hope the reasons on which I shall defend the principles will be equal to the confidence with which I make the assertion, that our object was to procure, by peaceful means, Annual Parliaments and Universal Suffrage; and, in so doing, notwithstanding all the declamation that has been urged against it, I shall endeavour to convince you that the establishment of these principles is not only conformable to every maxim of sound government, but congenial to the spirit of the British Constitution itself. In order, gentleman, to ascertain the first point, that Universal Suffrage (persons incapacitated by crimes and insanity excepted) is in fact consonant to the first principles of all good government, it will be necessary that we take some short view of the fundamental principles of society itself. The great object of the social institution, the great object for which men form themselves into society is, I apprehend, the safe enjoyment of their lives and property. If then, in the earliest stages of society, every man possessed a right to the preservation of his life, and also to the peaceable enjoyment of his property, it follows of course, that the mode of government, which is best calculated for the attainment of those ends for which government itself was instituted, must be precisely that very mode of government which all reasonable beings would wish to see universally adopted amongst men. Now, as every man claims from nature, a right of judging for himself on the best manner of promoting his own interest, and as no individual is born with any distinguishing mark of pre-eminence over his fellow-men, or with any character of exemption from the ordinary frailties of human nature, so every act of authority exercised by one man over another, or by a legislature over, the collective body of the people, unless it be exercised by the consent of the individual or of the collective body of the people governed, must be an act of tyranny. The right of the exercise of the understanding is the noblest privilege of our nature, and indeed is inseparable from our condition as moral agents; moral agency, in fact, being nothing else, but the being guided by the dictates of our own understandings and consciences in preference to those of another. And if, after the enactment of positive law, we submit to its authority, from which our private judgment may have revolted, it is only because a greater number of reasonable persons consenting to the law, than of those dissenting from it, carries with it the strongest presumption that the passing such law has been the result of a greater portion of reason, than its rejection would have been—that it is founded in justice and truth, [Page] and therefore more conducive to the great ends of society, inasmuch as it has received the authoritative stamp of the approbation of the greater number of its members, who, in all well regulated communities, being equally entitled to a participation of its benefits, must of course be equally interested in promoting its welfare.

It is not true, that when men agree to erect a government they give up any portion of their rights. No; they only adopt a different mode of enjoying them. They give up nothing; but by combining their own particular force with the force of others, they adopt a plan, by which they are enabled to possess their rights in greater security. All just government, therefore, being only a delegation, it cannot be armed with more power than it derives from the consent of them over whom it is exercised. Now, as prior to the establishment of government, no man had a right to take from another any property without his consent, and as all just authority exercised by any government must be derived from the people, so the government (which is, in other words, a national association for general good) cannot of right exercise any power, which one individual, before government was established, was not authorised to exercise over another. Hooker, to whom Queen Elizabeth, always applied the just epithets of learned and judicious, asserts, that the principle which I have just stated is the only solid foundation of all legislative authority. Laws they are not, says he, which public approbation hath not made so. Hooker's Eccles. Pol. lib. i. sect. 10. And Mr. Locke expressly says, that, ‘as government cannot be supported without great charge (a truth which we, God knows! feel every day to our cost,) so it is fit that every one who enjoys his share of the protection, should pay out of his estate his proportion for the maintainance of it. But still it must be with his own consent, i. e. the consent of the majority, giving it either by themselves, or their representatives chosen by them. For if any one shall claim a power to law and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government. FOR, WHAT PROPERTY HAVE I IN THAT WHICH ANOTHER MAY, BY RIGHT, TAKE WHEN HE PLEASES TO HIMSELF?’ Here then, Gentlemen, is the doctrine or Universal Suffrage expressly laid down. For as no man, in a state of society, can be altogether without property, either inherited or acquired by his daily labour, and as every man in the country pays a tax to government, either directly to the tax-gatherer, or indirectly through the commodities which he consumes, which all taxes ultimately affect, so it appears to me clear as the light of Heaven, that every man of adult years, not incapacitated by crimes or insanity, has a RIGHT TO A VOTE; otherwise he may exclaim, in the language of Mr. Locke, ‘what properly have I in that which another may, by right take when he pleases to himself?’ That government, then, gentlemen, which is not a government of consent, must of necessity, be [Page] a government of usurpation.—After all, there are but three modes, (except a man allows himself to be a public mendicant) in which money passes from man to man; by force, by fraud, or consent.

The first, it will not be contended, except by conquerors or highwaymen, can ever establish a just ground of possession. By the operation of the second principle, I am afraid, it does pass, whenever a man pays a tax in a government in which he is not represented.— During the American war, Lord Camden, the first law authority in England, and now president of the council, repeatedly asserted, that "taxation and representation were inseparable." Now, if his lordship meant any thing by the word representation, he certainly must have meant adequate representation, for no other deserves the name, or answers the end; which adequate representation is well explained by Sir Thomas Smith, a writer of great note and authority, in his Commonwealth of England, p. 37. "Every Enlishman," says he, ‘is intended to be present in parliament, either in person, or by procuration and attorney, of whatever pre-eminence, state, dignity, or quality soever he be, from the prince to the lowest person in England. And the consent of the parliament is taken to be EVERY MAN's consent.’ Here is the doctrine of Universal Suffrage, laid down in words as strong as the English language can afford. It was then to repair these ravages, which time, whom my lord Bacon terms the greatest INNOVATOR, had occasioned, that the British Convention sat; it was not to deform our constitution, but to restore it; it was not to promote, but to prevent its destruction, that we assembled. Besides, gentlemen, if the principle which Mr. Locke again states (see book on Government, p. 236.) be just, ‘that the preservation of property being the great end for which man enters society,’ it necessarily supposes and requires, that the people should have property, without which they must be supposed to lose that by entering into society, which was the end for which they entered into it; too gross an absurdity for any man to own. Men, therefore, in society, having property, they have such a right to the goods, which by the law of the community are theirs, nobody hath a right to take their substance, or any part of it from them, without their own consent. If such then, gentlemen, is the principle which ought to regulate the intercourse between man and man, in the common affairs of life, by how much more ought that principle to be observed by the legislature itself, to whom the most sacred of all trusts has been committed, and whose breach of any sound and salutary principle will be the more criminal, in proportion as such breach will be more extensively mischievous?

These are the principles of a man, who has a long time deservedly passed for one of the greatest masters of reasoning which England ever produced; who wrote in express vindication of the Revolution, and who, afterwards, held a place under King William (and would to God places had been always as worthily bestowed!) until he went to receive the final reward of his labours, from that Being [Page] who will always conser it upon those who deserve it well. Gentlemen, it is worthy of remark, that, not only speculative writers upon government, but writers upon municipal law, Sir William Blackstone himself, a judge, should lay down the same principle, not in express terms indeed, but, as you will see, very strongly by implication. He says, ‘In a free state, every man who is supposed a free agent’ (and unless a man is incapacitated by crimes or insanity, every rational being may be so denominated) ‘ought to be in some measure his own governor.’ See Black-Comment-octavo edition, page 158. Now, if words have any meaning, what does this establish, but the doctrine of UNIVERSAL SUFFRAGE? For I know of no other definition of liberty, than that those who are bound by the law should have a share in the making of it, either personally, or by deputy; and no other idea of slavery, than that state in which men are governed without this consent. Men who make laws for me, may indeed impudently tell me that I am free, for men may lie; but unless I have some share in the appointment of those who are to govern me, I can, in no sense, be said to be my own governor; but, on the contrary, have no more concern with the government of my country, than I have with those of Turkey or Morocco. Now, if the strict observance of this principle be necessary to give government a moral right, to take away the property of the subject, in how far greater degree, should the same principle be observed, as alone constituting a solid ground of authority, which can empower the legislation to frame laws, for a breach of which men are to be deprived of their lives?—It has been said also that the plan of universal suffrage is visionary and impracticable. But this observation, if true, though it may mark the plan itself as absurd, must necessarily discharge from blame all those who have proposed it. For a nonentity, like a phantom, is not to be dreaded, and a plan that is attended with no danger, is certainly no object of legal prosecution. No, gentlemen, our Creator, I am confident, has placed every thing that is valuable, every thing that is necessary for our happiness, within the grasp of human attainment. If then we should wantonly indulge wishes, and pursue objects, which are neither proper for us, nor attainable, the true and only punishment should be (as it must be) the frustration of our hopes, and the anguish of our disappointment. If like children we cry for the moon, like children we should cry on.

But, fortunately for me, gentlemen, my experience enables me to give a flat contradiction to the position advanced. I myself, resided, during four years, in a country where every man, who paid taxes, had a right to vote; I mean the commonwealth of Pennsylvannia. I was an eye witness of many elections which took place in Philadelphia, the capital of the state, an industrious and populous city, and can safely assert, that no one riot ever ensued. For, in truth, gentlemen, the representative had no interest distinct from his constituents; the office which he undertook was rather a burthen than a benefit, and [Page] as the government was too poor to purchase, and the people too virtuous to barter away their liberties, (even if the case had been otherwise) so the deputy, though he had every opportunity to serve, had no temptations to sell his constituents. What then has been found by experience to be wholesome food for Americans, can never prove hurtful or poisonous to Britons, the parent stock from whom Americans are descended.

Gentlemen, I am aware, that every practice and institution is alone defensible upon its own intrinsic merits, and the reason of the thing; yet the adoption of any principle, by men eminent for virtue and learning, is certainly no small presumption of the soundness of the principle itself. Gentlemen, Sir William Jones, a name too distinguished in literature to derive splendour from any encomiums I can bestow upon it, and who has acted as a judge for more than twelve years in India, previously to his departure published a tract in which he vindicated the doctrine of Universal Suffrage. At a very early period of my life, I was honoured with the friendship and patronage of this gentleman, and I am sure he would deeply feel, even after this long separation, any calamity which might befal me; a calamity (if it be one), certainly, not altogether, but in some measure, perhaps, produced by conversation with those whose practices were pure, and whose principles I conceived to be just, and who were therefore objects of reverence among men. Yet this very gentleman, at this very period, holds an office of great trust and great emolument in his majesty's important settlement of Bengal, and unseals those sacred fountains of justice which gladden and refresh fifteen millions of men.

Gentlemen, having now proved to you that the principles of which I am accused must be, in fact, the principles of all good government, and that they have been supported by the greatest of all human authorities; I shall now prove, I trust, equally to your satisfaction, from incontrovertible historical documents, that they are also congenial to the spirit of our constitution.

Gentlemen, Montesquieu has told us, that the rudiments of our excellent constitution are to be sought and found in the woods of Germany; where, as Tacitus informs us, all were free, and where all were entitled to deliberate upon matters of national importance. No proposal could pass into a law, binding upon the people, which had not been approved by the people.

‘De Germania. De minoribius rebus PRINCIPES consultant, de majoribus OMNES. Ita tamen ut ea, quoque, quorum penes plebenarbitrium est apud principes PROTRACTENTUR.’ I have adopted the reading of Colerus and Aeadalius in preference to the common reading which is pertractentur, and which corresponds with the Greek, the proper business of the ancient senates.

Gentlemen, in the earliest stages of society, when commerce was scarce buding, almost every inhabitant held a certain portion of land: and as land, alone in those days, was the fund from which [Page] taxes were raised to support the expences of government, so every land holder (of which description was almost every member of the community) had a right to vote. Squire, in his view of the Anglo Saxon Government, a book of very profound research. (Gentlemen, Squire was Archdeacon of Bath, and afterwards Bishop of St. Davids, and it is certainly no part of the Episcopal function to disseminate seditious doctrines among the people) Squire tells us, the affairs of the country were, at that time, conducted by the king, the witenagemot, and the myclegemot. The witenagemot, or kings court, was an assembly of the best and the wisest men in the nation, corresponding to what our privy council is, or (I beg pardon of our ancestors) corresponding to what a privy council ought to be. The myclegemot, on the other hand, were a body chosen by the people at large, corresponding to what the principles of our constitution suppose the parliament should be, a real representation of the people ‘The Witenagemot (says Squire, see p. 190) were persons supposed to be best acquainted with the exigencies of the public. It was their duty to propose what they thought most expedient for the good of the whole: the new laws, especially, seem all to have been drawn up and prepared by them, though nothing which they did of this kind was obligatory to the community, until it had received the general confirmation.’ How was this general confirmation brought about, but by the vote of every freeman? a term applicable to all, except such as were in a state of personal slavery, who upon the Norman conquest were denominated villians; a set of men, corresponding to what, your lordships well know, the civil law calls adscupti gleba; but who have ceased to exist in this country for near a century and a half, villainage being formerly abolished by an act of parliament, passed in the early part of the reign of Charles II. As it is strictly conformable to the spirit of our constitution, to continue all laws and customs in favorem libertatis, so personal slavery being now done away, and all British citizens being freemen, they are of course entitled to all those privileges which even the express letter of our early constitution conferred upon them, as described, exercised, and enjoyed, in their fullest extent.

Gentlemen, this was the form of government, which in a very early period prevailed; these were the principles which flourished during the reign of the Great Alfred, than whom never lived a purer legislator; and who, Hume, in express terms, tells us, approached as nearly to human perfection as the infirmities of human nature would admit. If then, gentlemen, these doctrines are conformable not only to the universal principles of justice and of reason; if they are so expressly maintained by so respectable an authority as that of Mr. Locke; if they are implicitly assented to by so respectable a judge as Sir William Blackstone, (for the words 'every man is his own governor,' mean that, [...] they mean nothing) if they have been publicly avowed by Sir William Jones, who, in point of learning, yields to no man to whom this kindom [Page] has given birth, since the days of Lord Bacon; I cannot, surely, be charged with innovation and a design to disturb the public peace, for having circulated principles that have long been current, and which men of so distinguished reputation have acquired fame in supporting.

Gentlemen, I know much nonsense has been talked about virtual representation: but if representation be not real, it is no representation at all. I wish to God that the supporters of virtual representation would impose on us only virtual taxes, and inflict virtual punishments; but this they will not do: therefore, till that event, I do not think they have any right to more than virtual taxation. Gentlemen, I lay down these principles as subjects for your consideration merely; for I hold that every inconvenience is to be borne for the preservation of the general peace. But whenever governments act directly contrary to the end for which they were instituted; when, instead of being the guardians, they become the oppressors of our liberties, common sense, common justice, and express law authorities, will tell us they are no longer objects of obedience: and this our ancestors confirmed, when they established the Revolution.

Gentlemen, I am not so well skilled in the historical antiquities of Scotland as I could wish, or, perhaps, as it was my duty to have been; but I beg you will carry this principle continually in your minds, that if such have been the privileges of England, and if this country is entitled, by the articles of union, to the same privileges, I see no offence in wishing, and attempting to effect, that Scotsmen should be admitted to a participation of the same rights. I have, in my hand, a book of the late Dr. Stuart, who has written upon the public law and constitution of Scotland, in which are several passages that favour, very much, the doctrines I have laid down, and which, at the same time, prove a strong similitude between the ancient Scottish and English constitutions. ‘In the body of the laws of William the Lyon, who began to reign in the year 1165, are these notices: Assisa regis Willielmi, facta apud Perth, quam episcopi, abbates, comites, borones, thani, et TOTA COMMUNITAS REGNI, tenere firmiter juraverunt.' 'An assize of King William, made at Perth, which the bishops, abbots, knights, barons, thanes, and the whole community of the kingdom, firmly swore to maintain.' Cap. 7. And again, 'statuit rex per concilium et assensum TOTIUS COMMUNITATIS SUAE.' 'The king hath enacted by the advice and consent of his whole community.’ Cap. 4. The preamble to the laws of Robert I. is also in these words ‘habitoque solemni tractatu, cum episcopis, abbatibus, prioribus, comitibus baronibus, et aliis magnatibus, DE COMMUNITATE TOTIUS REGNI ibidem congregatis, super variis et arduis negotiis,' &c. The constitution was greatly treated of, with the bishops, priors, knights, barons, and other great personages, of the whole community[Page]of the kingdom, at the same time gathered together, upon various and arduous affairs.' So when John Baliol told Edward I. that he 'could not and dared not express any sentiment which concerned his kingdom without consulting his people,’ he meant something more than the sanction of the prelates, the nobles, and the tenants in capite. Ryley Placet. parl. p. 159. an. 1293. And Dr. Stuart, that profound and laborious antiquarian, positively says, that ‘the expression of Baliol is easily comprehended, and had a reference to the whole kingdom.’ (See Observations concerning the Public Law and Constitutional History of Scotland, p. 334.) The expression Magnates, or great men, which is found in the statute of Robert I. that I have just quoted, may, I am aware, be supposed to apply only to persons of higher rank, yet, upon examination, it will, I am confident, be found strictly applicable to the representation of the people, the tota communitas. For in England it appears exactly in the same sense; and we know, both from Rymer and Pitt, that in that kingdom, noble, most noble most illustrious, most precious seignors, monseignors and sirs, were appellations of the Commons. Here, then, is a proof, that in the early period of the history of Scotland, the whole community of the kingdom, (i. e. every free man) not collectively, no doubt, but representatively, were concerned in passing those laws, which they also swore they would firmly maintain.

Gentlemen, I cannot account for this coincidence between the constitutional forms and principles of England and Scotland, at so early a period of our histories, without supposing that they must be congenial to the natural order of all government itself; and that these deviations which have since been made by the ravages of time, have been the abuses of the constitution, and not the principles of it.

Gentlemen, the third charge against me is that of having urged arguments in support of annual parliaments though I have heard from very respectable authority, no less, I believe, than one of the learned lords upon the bench, he did not conceive there was any material objection to such a measure. He gave indeed no decisive opinion upon it; but he seemed to think, that a mere peaceful discussion of the subject of annual parliaments would not render a man an object of criminal prosecution by the laws of this country. But I go further; I apprehend that annual parliaments may be supported as well by the reason of the thing, as by ancient usage; and upon this plain principle, that power long continued is too apt to corrupt the disposition of the possessor, and that a people, when they intrust so sacred a charge as that of making laws, (the abuse of which may work a destruction of their lives, and the ruin of their property) cannot be too vigilant in observing the conduct of those to whom they delegate this trust, nor too quick in recalling them whenever they abuse it. By long parliaments we lose the great advantage which our constitution has provided, of curing the evil, before it grows confirmed and desperate, by the gentle method of choosing a new representative; [Page] and the people are by consequence reduced to have no other alternative, than that of submitting or resisting; though submitting will be as grievous, and resistance much more difficult, when the legislature betrays its trust, than when the king alone abuses his power, Besides, short parliaments, should they become suddenly corrupt, carry with them their own corrective; for, ‘leeches, and other blood-sucking worms, as Davenant well observes, are engendered in standing pools; flowing waters do not corrupt nor breed so many insects.’

It is a melancholy fact, but it is a very certain one, that parliaments have generally been dangerous in proportion as they have been long.

The long parliament (peculiarly so denominated on account of the length of time which they sat) that sat in the reign of Charles I. I believe were pretty instrumental in bringing the head of that unfortunate monarch to the block. I cannot therefore believe, that long parliaments can be supported by gentlemen, who avow, that their intention is to defend monarchical principles; when a parliament was that which overturned the monarchy, and beheaded the sovereign. The House of Commons which sat for so long a time in the reign of Charles II. were so notorious for their profligacy, that Rapin assures us, one half of them were bribed by the court of France, probably, the other half by our own.

Gentlemen, I am well aware that it may be said, that if elections were more frequent, greater tumults would ensue. I apprehend the reverse of this position is exactly the truth; for, it might be worth the while of a member of parliament to get elected under the corrupt influence of the Minister, when he is in for seven years though not when he is in only for one; for, knowing that he must, at the end of a year give an account to his constituents, he would take greater care how he executed the important trusts committed to him, than if he was delegated for a large time. If then, gentlemen, the object of getting into parliament would not be such as to make it a stronger inducement for person's, in general, to become members, of course tumults would not so frequently ensue at general elections as, to our misfortune and disgrace, they do under the present system.—In support of this doctrine of annual parliaments, I am fortified by the authority of a gentleman, who is and who has long been, a member of the House of Commons, I mean Mr. Alderman Sawbridge, who, wearied out, at last, by continual disappointments, has abandoned his project, not from conviction, but despair. The treasury bench, indeed, solito more, "according to custom," never made Alderman Sawbridge's proposal the subject of discussion; but, as often as the motion was made, coolly negatived it, by the dead eloquence of numbers.

Gentlemen, parliaments you must recollect, were annual, till the time of Henry VIII. He was the first who broke in upon the custom of annual parliaments; and he, I trust, will never [Page] brought forward as an authority as he was a monster of whom it was, emphatically said, ‘that he spared no man in his wrath, nor woman in his lust;’ and, who distinguished himself during a long and a bloody reign, by oppressing his subjects, and beheading his wives. Besides, gentlemen, as the great object of the SOCIAL INSTITUTION is to call forth, to their fullest excition, the aggregate faculties of all those who are members of it, for the purpose of producing the greatest possible sum of happiness; so, if this custom of annual parliaments were revived (for they are not innovations) it would introduce many more into public business, who are now excluded from it, and whose minds being inflamed and invigorated with a love of glory, and a passion for promoting the public weal, would rouse themselves from that supineness which invites oppression, and which is too often the bane and destruction of nations. For, under the present system, many persons having scarcely any concern with the government, except as they are called to support it by the payment of taxes, they either grow careless and indifferent about the measure which it adopts, or seek to better their condition by recourse to violence.

Gentlemen, it appears that such also was the law of Scotland; for I find by a statute passed in the 1st parliament of James VI. in the year 1587, ‘it is ordained, that the commissioners of all the schirreffdomes of this realme be elected be the freehalders foresaids, at the first head court after Michaelmas zeirly.’ It is, therefore, no new doctrine in Scotland any more than it is England. And I find by an article of the Claim of Rights that the Old Scottish Constitution was to be restored; which claim of rights certainly took place after the passing of that act, and which act constitutes an essential branch of the scottish Constitution.

A very eminent writer, gentlemen, upon annual parliaments, begins his book with this very remarkable observation, ‘where annual election ends, slavery begins.’ And he states precisely the reasons that I have stated to you, that if power, continues long in the same hands, it has a tendency to corrupt, and that it should not only be delegated for the benefit of those over whom it is exercised, but, that it should also be delegated in such a manner as to prevent any permament, if not immediate abuse of it.

Gentlemen, I now come to the period of the Revolution, an event which established our constitution, (it is said) a constitution, however, which weak men, I fear, praise without understanding, and which wicked men violate while they praise. The English delegates have been charged with an intention of having come to this country, for the purpose of destroying those advantages and benefits which the subjects of the two united kingdoms derived from that glorious event. If the charge could be brought home to us, it would not be merely a transportation to Botany Bay, which ought to be our sate, but an execution at the gallows. But [...] charge is totally unfounded, and I am surprised that it has been [Page] brought forward by persons in particular situations; since that charge, like many others, will, upon examination, recoil on the heads of those who made it. I will shew you, gentlemen, that the benefits of the Revolution have been done away, but not by us; for it was our purpose to revive them. Has it not been proved, by Mr. Wharton, in the House of Commons, in a speech to which no answer was given, that not one single vestige remains of the wholesome regulations which the Revolution produced. I know that it is treading over beaten ground; but, I trust, you will not think your time uselessly consumed, when it goes to establish a point, upon which my guilt or innocence materially depends. I shall now read to you extracts from a pamphlet, of which I am not ashamed to avow myself the author, entitled "address of the British Convention to the people of Great Britain," and which was drawn up by me at their express direction: "The spirit of Alfred again rose to animate the councils of his regenerated country. Scotland, which had long groaned under the domination of an austere and insolent aristocracy, was called in to share with her brethren of England, the blessings of freedom, which she had contributed to produce. Placemen and pensioners were excluded by law from the House of Commons, lest a sense of their dependance on the crown should, as it must, make them forgetful of their duty to the people. Parliaments were not to sit for more than three years, since power long continued is commonly abused, as those entrusted with it, are too prone to forget the hand which gave, and the purpose for which it was given. Ministers were made answerable for the counsels which they afforded, and the throne, now guarded by the vigilance, and sustained by the love of all its subjects, was no longer a sanctuary for the treachery of its servants.

Friends and countrymen, these wise and wholesome provisions, which were once the boast and security of Britons, now form o [...]y an object of melancholy remembrance. They are buried in the same sepulchre with the bodies of our ancestors. In many parliaments, which have sitten since the Revolution, placemen and pensioners have been so numerous, as to controul the will, while they violated the rights of the people. Since that time, parliaments have more than doubled the term of their duration, not by an appeal to the voice of their electors, but by the arbitrary effort of a self constituted authority. Judging from this specimen, and drawing the natural inference, that what has been done may be done again, we know of no barrier or security, at present existing, to prevent a future parliament from enlarging the term of their duration to twenty years, or, if it suits their interest or ambition, from declaring themselves perpetual. The responsibility of ministers has become an empty name. Crimes, which during former periods, would have called down upon the heads of their guilty authors the just vengeance of an injured nation, have been only a passport to opulence and power. The people of Britain have seen [Page] the very ministers who dismembered the empire, squandered a hundred millions of money, and poured out the bloud of more than a hundred thousand of their fellow-subjects in a cruel and desperate contest, again recalled into the confidence of their sovereign, and loaded with the honors and emoluments of the empire.

Thus you behold, that the spirit of those regulations, which the Revolution produced, is fled, and what remains is only the dead carcase which encumbeas the statute book. We now ask, who are those, that are guilty of innovation? Is it that band of hirelings, to whom coruption is food, or is it we, who wish only to restore the principles of our Saxon ancestors, which gave us freedom, and that sacred compact which confirmed it at the Revolution? If the foundations of the throne are shaken, are they shaken by us, who seek only to replace it on those solid grounds, on which it was originally erected; or, are not they rather shaken by those who, with hollow professions of loyalty in their mouths, have sought to establish the authority of the crown, by the renovation of those practices which banished the Stuarts, and by the violation of those principles which elevated the Brunswicks? We cherish the constitution of our ancestors, not as a speculative bauble, but as a practical good, and we contrast, with an honest pride, our own sincere admiration of that system, with the fawning treachery of its real foes—of men, whose praise is profanation, and whose external homage is concealed blasphemy."

Yet, notwithstanding, the present system of government is a libel upon our real constitution; the word constitution, constitution! is rung in our ears with unceasing perseverance. This is the talisman which the enemies of reform wield over the heads of the credulous and the simple; and, like old and wicked enchanters, having first bound them in the spell, take advantage of the drowsiness which their arts have created. But to hear placemen and pensioners talking of a constitution, when their whole lives are one uniform violation of its principles is, like a monk preaching population, or a farmer general commiserating the distresses of the poor.

Gentlemen, there is one particular error, into which all those who have enumerated the regulations which took place at the Revolution have fallen, and of which, until a few days past, I myself was not conscious. Having no other object but truth, I beg leave to state it to you. The bill for excluding placemen and pensioners, though it passed in the reign of King William, was not to take effect until the accession of the house of Hanover. In the intermediate period, indeed, that act was repealed; but does not the passing of the act, at the period of the revolution, clearly prove that we are entitled to its revival, now, when the house of Hanover is sitting on the throne, in consequence of that very revolution; and when it may be safely inferred, [Page] that the act alluded to, and their compliance with its principles, was made a condition of their subsequent elevation?

Gentlemen, the public prosecutor has, in vague and general terms, charged me with an intention of overturning the constitution; but I now call upon him in terms particular and precise, to declare whether the system under which he acts has not rooted out every valuable principle, every wholesome regulation, which the revolution produced; whether those regulations are a living spirit, or a dead letter; whether placemen and pensioners do not now swarm around the treasury bench, like vermin on the banks of the Nile. And even when, by a mockery of our understandings, they vacate their seats, for a short time, for what is called the Chiltern Hundreds, are they not again re-elected?—elected did I say? No! again nominated by the peer who originally sent them, in a manner as peremptory as the king, by his Conge d'Elire, nominates a bishop! This, gentlemen, is not idle declamation; it is solid fact, and incontrovertible proof. I therefore call upon you, my countrymen, in your turn, and ask you, how you can conscientiously lay your hands upon your hearts, and solemnly declare, before God and the world, that I have attempted to overturn a system, of which it has been proved to you not a vestige remains? Do you not know, that those who instigated this prosecution, when called upon to revise these principles of the constitution, as they could not answer the arguments of the patriot Wharton, preserved a sullen and criminal silence? What then must you think of a state prosecution, which rests for support on so sandy a foundation; or what rather must you not think of the conduct of those men, who, while they are heaping upon my devoted head the charges of treasons, conspiracies, and sedition, can give the real scandal of so notorious and wilful an insincerity?

Gentlemen, the triennial bill has long been repealed: but why not now revive it;—since the reason on which it was repealed has long since ceased? For, if you will take the trouble, gentlemen, of looking at the parliamentary debates of that period, not even the rankest ministerial hireling attempted to defend the measure, upon any other principle than that of temporary expediency; as it was thought unsafe to expose the country to the tumult of a geneneral election, when a rebellion was raging in the heart of the kingdom. But now it seems, the septennial bill has become as much a part of our government, as the malt-tax, the mutiny-bill, and a standing army; which when first passed, it was declared, were only to be temporary, and, like the septennial bill, were only submitted to on the fatal plea of a state necessity. "The responsibility of ministers, it is stated, has become an empty name." Would to God it were false; but is not the fact as melancholy as it is true? Do not those ministers who conducted the American war (an event which shook these kingdoms to their deepest foundation) conduct the present war? Did not Lord North, who was prime minister during the whole of the war, enjoy, for many years after the war was ended, [Page] a sinecure place of 5000l. a year (now indeed devolved upon Mr. Pitt?) And do not his family, at this very hour, receive from the country a considerable income, granted during their father's ministry, by way of reversion, though I could never learn that they have earned it by their services?

Gentlemen, the right of our meeting in convention by delegation has been expressly, denied by the Solicitor General, and he, (I am sure if I mistake his meaning, it is not purposely, and I beg he will interrupt me) I think he denied our right to meet by delegation.— Had we met as the united delegates of all Britain, we should have arrogated a title to which we had no right. But we did no such thing: we met, only, as the representatives of some thousands, who delegated us for a purpose which we knew to be constitutional; and we conducted ourselves in a manner firm, but peaceable.

If, in the common concerns of life, a man can receive a power of attorney to manage, the pecuniary concerns of another; so, I trust, he is authorised to carry into execution, for the benefit of his fellow-creatures, affairs of a much greater concernment; otherwise you deny him, in fact, that privilege, without which all others are nugatory, I mean the essential privilege of self-preservation. I am happy, however, that the charge is brought forward, as a ground of criminality; inasmuch as the meeting, which delegated us, was publicly held in an open field, in the face of day, in the presence of many thousands of our fellow citizens, who were calm and attentive spectators of what was passing, and in the presence, even, of five hundred peace-officers, some of whom were members of our association, and others sent, by the secretary of state, to watch over our proceedings and to make their report. Of the latter, I can assert from my own personal knowledge, many became converts to our doctrines; which, as they were founded in reason, and have no other object than the general welfare of mankind, must make converts of all who have not an interest in opposing what it is their duty to practise. All these things, gentlemen, were suffered to pass, under the eye of the police, under the very beard, if I may say so, of the secretary of state himself, who is, ex officio, the great conservator of the public peace; and in the very heart of the capital of our country, which is, or which ought to be, the great sanctuary of the law.

Gentlemen, the publicity of our conduct was certainly a proof that we deemed it to be innocent. And if the officers of state deemed it to be otherwise, upon what principle can you excuse their supineness and inactivity in not dispersing the meeting, and taking up the delegates, since to prevent crimes is far better than to punish them, and far more the duty of the civil magistracy, unless, in the pride and haughtiness of their hearts, they sought to cherish the seeds of a state prosecution against men whom they had marked out as the victims of their resentment? Their conduct, then, we can only look on as TRAPS TO ENSNARE US. Gentlemen, if what I have stated be well founded, we are entitled to draw these melancholy inferences; that [Page] the articles of the Union are violated in this business, and that there is not, as the fourth article avers there shall be, ‘a communication of all rights and privileges between the subjects of both kingdoms;’ since a man may commit, with impunity, on the other side of the Tweed, what, if he crosses it, he shall be transported for; that an unity of the principles of action, an equal and undistinguishing law, operating, either to the punishment or security of all citizens alike (and which is the great badge of freemen) does not prevail among us; but that the code of the two countries is an heterogeneous mass, like Nebuchadnezzar's image, made up, partly of clay, and partly of brass. These facts, it would be like burning day light to prove, and he that runs may read them.

Gentlemen, the great and distinguishing mark of men is reason. If we are debarred from the privilege of exercising this invaluable faculty, we are reduced to a situation (I will not say on a level with the beasts of the field, for many of them, like ourselves, are social and gregarious, and have the power) from the exercise of which the laws of this country has not as yet debarred them (of communicating their ideas, though not indeed by articulate sounds) if we are debarred from this privilege, then, I say, we are reduced even lower than the brutes, and put upon a level with oysters and other shell-fish, whose powers of motion are limited to gape and receive, what the bounty of nature, unlike that of the governments of the earth, which rather take than give, confers for their support. The constant theme of the supporters of government is the excellence of the British Constitution. Willing as we are to admit the position, it is certainly not unreasonable to ask how is this excellence to be ascertained. It is surely not a matter of instinct; consequently, can only be ascertained by the exercise of our reason. If you deny us this privilege, or, what is nearly the same, punish us for the use of it, your government, I aver, stands precisely upon the same foundation as the governments of Turkey and Algiers; for the Viziers, the Bashaws, and other state officers of those arbitrary governments, so long as they are enjoying their salaries, and fleecing the people, will assert, no doubt, with equal confidence, that those governments are the best, and that all attempts to examine, or controvert by reason, the principles on which they are founded, are highly seditious, have a tendency to disturb the public peace, and are, therefore deserving of the punishment of the law. If you interdict the free use of our reasoning faculties on matters of government (and they do no more) you and they are exactly on a par; and if you do not, the dispute between us is at an end, as you concede the very point for which we are contending.

Gentlemen, it is a very melancholy consideration in the present times, and it is with a mixture of grief and astonishment I speak it, that the very same kind of arguments, which at the dawn of the Reformation were made use of by the Catholic clergy, who were [Page] endeavouring to hold the people in the fetters of superstition, are now made use of by those very persons, who, for purposes equally selfish, are repressing the progress of political information. Cardinal Bellarmine, a man eminent for learning, but vehement in his opposition of religious reformation, declaims, particularly against the impious attempts to diffuse knowledge among the lower classes; and to lay open the Holy Scriptures to vulgar eyes. Religion in those days, it seems, like government in the present, was to be believed and confided in without being examined. Oh! Preposterous insult to the dignity of human reason! Oh, Blasphemy against the author of all goodness! As if the parent of knowledge were capable of giving a revelation to his creatures, to be adopted for ages by millions of reasonable beings, that would not stand the test of human enquiry! The true religion, like all free governments, appeals to the understanding for its support and not to the sword. All systems, whether civil or moral, can only be durable in proportion as they are founded on truth, and calculated to promote the GOOD OF MANKIND. This will account to us, why governments suited to the great energies of man, have always outlived the perishable things which despotism has erected. Yes! this will account to us, why the foul stream of prejudice and calumny, which is continually washing the dissoluble fabrics of all superstitious impostures, passes without injury, by the adamant of Christianity.

It is worthy of remark, gentlemen, that in our days, the great champion of despotism has not scrupled to borrow his favourite phrase from a monkish writer, who was an enemy to the Reformation: Knighton, an abbot of Leicester, who wrote at the beginning of the Reformation, when he is deploring the publication of the Scriptures to the common people, has this remarkable expression, ‘Pity it is, that this evangelical pearl should be trodden down under the foot of swine.’ Mr. Burke laments, that ‘learning should be trodden down under the hoof of the swinish multitude.’ In justice to the mouldering monk, I must however observe, that the expression considered merely as an expression is truly beautiful; whereas, Mr. Burke's phraseology is as destitute of taste and congruity as it is devoid of benevolence.

But, gentlemen, if you take the principle of the thing, you will find that every nation has a right, not only to preserve the form of government which is actually established; but, also, by the peaceful and calm operation of reason, to improve that form of government, whatever it may be. If you deny this position, you must say, that our ancestors had a privilege which we have not a right to exercise: an absurdity too gross to deserve a serious refutation; since all men being born equally with the same rights, through every succession of ages, no generation can annihilate or curtail the rights of a subsequent one. The moral right, indeed, of altering any goverement must always depend upon the particular circumstances of the case, but the abstract right is always vested in the PEOPLE; of the moral [Page] exercise of which (however they may occasionally abuse it) they must be, and they are, the proper and ultimate judges. What, therefore, the Solicitor General has said, that we have, now, no right to frame or alter the constitution, but that it is our duty implicitly to obey it, since it was established at the Revolution, and transmitted to us by our ancestors, I deny to be sound reason, or salutary political doctrine. In adopting this position, I am fortified by the authority of Algernon Sydney, than whom a purer spirit never appeared before the tribunal of his maker; ‘Laws and constitutions (says he) ought to be weighed, and whilst all due reverence is paid to such as are good, every nation may not only retain in it. self a power of changing or abolishing all such as are not so, but ought to exercise that power according to the best of their understanding, and in the place of what was either at first mistaken, or afterwards corrupted to constitute that which is most conducive to the establishment of Justice and Liberty. But such is the condition of mankind, that nothing can be so perfectly framed as not to shew some testimony of human imbecillity, and frequently to stand in need of reparation and amendments. Many things are unknown to the wisest, and the best men can never wholly divest themselves of passions and affections. By these means, the best and wisest are sometimes led into error, and stand in need of succession like to themselves, who may find remedies for the faults they have committed; and nothing can or ought to be permanent but that which is perfect. No natural body was ever so well tempered and organized, as not to be subject to diseases, wounds, or other accidents, and to need medicines, and other occasional helps, as well as nourishment and exercise; and he who, under the name of innovation, would deprive nations of the like, does as much as lies in him, condemn them all to perish by the defects of their own foundations. Some men observing this, have proposed a necessity of reducing every state, once in an age or two, to the integrity of its first principles: but they ought to have examined, whether that principle be good or evil, or so good that nothing can be ever added to it, which none ever was; and this being so, those who will admit of no change would render errors perpetual, and depriving mankind of the benefits of wisdom, industry, experience, and the right use of reason, oblige all to continue in the miserable barbarity of their ancestors, WATCH SUITS BETTER WITH THE NATURE OF A WOLF THAN THAT OF A MAN.’ Sydney on Government, quarto edit. p. 405.

Gentlemen, we all know that the human mind is suffered to be active in the improvement of those civil arts, which conduce to the comfort and happiness of human life, I mean the mechanical arts; and shall the grand art of all, that of making men secure in the enjoyment of their acquisitions. I mean the art of government, be alone neglected, alone compelled to be stationary? But abandoning the principle and reason of the cases, the facts themselves contradict the [Page] assertions of our adversaries. Our constitution has never been stationary. It has been in a gradual state of improvement; and a writer to whom this country had the honour of giving birth, I mean Hume, expressly tells us, that the history of England is little else "than a history of reversals." Do we not know that the acts of parliament are frequently set aside, and others directly contrary passed in their stead? By the treaty of Troyes, after the battle of Agincourt, which was regularly ratified and confirmed, and no opposition made to it, either by France or England, the two kingdoms were for ever unrepealably united under Henry V. Where is now the unrepealable union between England and France? Oaths were heaped upon oaths to bind the nobility of England never to violate any of the constitutions of Richard II. as Rapin assures us (vol. 1. p. 245.) where are his constitutions now? During three successive reigns, the national religion was three times successively changed by act of parliament. A more compleat tyranny cannot be conceived than William the Conqueror established over the people of England. Yet but a few reigns pass away, and the barons establish a legal right to redress their grievances by FORCE. Magna Charta says, ‘Destring- [...]cu [...] et gravabunt nos,’ &c. The barons complaining and failing of redress, shall lawfully distress and aggrieve the king all manner of ways, as by taking his castles, land possessions, &c. till redress is granted. After the restoration comes the corporation act, and declares all resistance unlawful. The same doctrine is preached in the act of attainder, and militia acts. Nor thirty years after this comes the Revolution, and abolishes the whole system of passive-obedience, and non-resistance; sends the whole royal family a packing, and brings in the house of Nassau. The liberty of the press was taken away by the 13th Charles II. The liberty of petitioning was abolished the same year; and then the corporation charters were taken away. All these were restored by the Bill of Rights. Do not then, gentlemen, these facts prove Mr. Hume's words, ‘That the history of England is little better than a history of reversals.’ There are some men, I know, who see a spectre in every bush. Lord Nottingham, when the Union was in agitation, declared that the changing of the term England to that of Great Britain would subvert all the laws of England. And in our own days there are of the same description of men of whom we may say, that the word innovation, to use Mortimer's expression, ‘has frozen up their souls, like fish in a pond.’ After all, the most useful discoveries in philosophy, the most important changes in the moral history of Man, have been innovations. The Revolution was an innovation; the Reformation was an innovation; Christianity itself was an innovation.

Lord Justice Clerk. You would have been stopped long before [...], if you had not been a stranger. All that you have been saying [...] [...]dition; and now, my lords, he is attacking Christianity.

Lord Henderland. I allow him all the benefit of his defence; but [...] are the present situation of this country, with what happened [Page] at the Revolution, when the forms of civil government and the liberties of the subject were done away by the infringement of all law; or with that period, in which the sovereign is said to have forfeited his life! I cannot sit here without observing as was done in England, in the year 1745, when the rebels were tried; I cannot sit here, as a judge and as a man, without saying that it is a most indecent defence. It is my duty to observe this; but I am for the pannel going on in his own way.

Mr. Gerrald. I conceive myself as vindicating the rights of Britons at large; and I solemnly disclaim all intention of attacking Christianity. I was merely stating the fact.

Lord Justice Clerk. Go on in your own way.

Mr. Gerrald. I think I may be allowed that at least.

Lord Justice Clerk. Go on sir.

Mr. Gerrald. I should have been going on if your lordship had not interrupted me.

Gentlemen, the great charge against me is, that I came down here for the purpose of carrying on reform; and if I am not allowed to go into a vindication of these general principles, and an enumeration of particular abuses, I may be condemned indeed, but I certainly am not heard. I was only arguing that the supposed principles charged upon me were such as have been adopted by the best and wisest of men; and if they can shew me, from higher authority, that they are unconstitutional, I would instantly become a convert to their doctrines; but reason alone, and not assertion, can convert me. I shall now endeavour to prove to you that our object was perfectly constitutional.

Gentlemen, by a return of the representation in parliament, an object which we feel equally interested in with all other British subjects, given us by a society called the Friends of the People, many of whom are members of Parliament, and, among others, the illustrious Sheridan, (the brilliancy of whose talents can only be equalled by his disinterested attachment to the liberties of his country) it appears that in England 2611 persons—return to parliament 327 members, and in Scotland 98 persons elect 15, and the remaining 30 are elected by about 1400.

This is not an adequate representation; but a mockery of representation; and therefore not such a representation as the original principles of our constitution intended, or as the Revolution was meant to promote. Surely, gentlemen, it is not the semblance of a parliament that we want, not the more name of a parliament, the magistratuum vocabula, as Tacitus well expresses it; but such a parliament as shall preserve our interests, and express our wills. If the court's governing without a parliament was formerly the object of our terror; if its governing with a parliament is as justly the object of our wishes; its governing by a parliament is an infallible method, not only to compass, but give sanction to our ruin. With regard to the first of these governments, our terrors have long slumbered; for, [Page] while we so fully give, why should the sovereign take? But if ever the period should arrive, when the House of Commons should invariably answer to the calls of the crown, though they should be deaf to the cries of the people; that they should purchase on the one hand, only to sell on the other; that instead of redressing grievances they should authorise them; instead of prosecuting malefactors, they should screen them; instead of protecting and defending the rights of their constituents, they should perfidiously betray them; if ever such a period should arrive, I say, we might still amuse ourselves with the word constitution; but hope itself would sicken, as the constitution, in fact, must be every where undermined, and at the first sound of the trumpet of despotism, like the walls of Jericho, would sink into a heap of ruins.

Gentlemen, I was not drawing any parallel, when the bench interrupted me, between the state of this country at this time, and the state of it at the Revolution; but, I was laying down a principle, that if persons in any given period had a right to meet for the purpose of bettering their government, they had the same right at every subsequent period. The Revolution was carried into effect by open force, but here there was no idea of force, which I trust, I shall be able to prove. In our meetings there was no idea of any force at all, and therefore, instead of drawing a parallel between the situation of the country at that time, and at this, or of inculcating the propriety of having recourse to force, we were doing directly the reverse.

Gentlemen, I shall now briefly examine the principles, which the report of my speeches in the convention attributes to me. It is there stated, that I said ‘no meeting of the people can be called a mob, if their deliberations be directed towards the public good; but if men meet for an opposite purpose, for promoting the misery or the destruction of the human race, though they sit down with crowns on their heads and sceptres in their hands, they are truly a mob.’

These, gentlemen, I hold to be moral and self-evident propositions; that it is not the possession, but the just exercise of power, which should render it an object of reverence among men; and that the essential principles of vice and virtue are not altered by the practices of persons in high stations—‘Promota justitia (says, St. Austin) quid sunt regna nisi magna latrocinia?’ 'If justice were laid aside,' as this venerable father has well said, ‘the governments of the world would resemble dens of robbers; and men would follow only those who can inflict the greatest punishments, or give the greatest rewards;’ but since the reception of such opinions would be the extirpation of all that can be called good, we must look for another rule of our obedience; and we shall find that only to be the law, (I mean that Tully calls the sanctio rectua) which being founded upon what eternal principle of reason and truh, whence the rule of justice, which is sacred and pure, ought to be reduced, [Page] and not from the depraved will of man, which fluctuating, according to the different interests, humours, and passions, that at several times reign in several nations, one day abrogates what had been [...] acted the other. This sentiment, then, just and reasonable in itself can never be construed into a reflection upon the present government; unless you suppose that which I never asserted, namely that it is applicable to the present government; in which case you must commit the very offence which you are called upon to condemn, and attribute those motives to the particular magistrates of our own country, which I only supposed might occasionally influence the conduct of many.

I am next charged with saying ‘were all mankind to assemble in public meetings, one of two things must follow; either they will behave properly or improperly; if properly, their meeting will tend to good; if improperly, it carries its own cure along with it. The people will be soon brought into a better method by a sense of self preservation, by which they will correct the errors into which they have fallen.’ Than this sentiment, gentlemen, I conceive nothing can be more innocent, and more strictly and logically true. By the "assembly of the whole community" I certainly did not mean what a learned lord, in his argument on the relevancy, erroneously. I hope not intentionally, stated to be my meaning, the meeting of all the people in their collective capacity, which would impede business, and give rise to tumults. No.—I meant the meeting of the people in their representative capacity— but, such a representation as should collect and express their wills, as really and truly as if they had been assembled in their collective capacity. A fair, full, and complete representation—not a delusive vision, an empty phantom, an unreal mockery. This I can also inform his lordship was the only sense conveyed by my words, 'the great art of government is that all should be governed by all',—words, (which his lordship thought proper to ridicule because he did not understand them,) and which, besides their own intrinsic weight have been adopted by wise and virtuous men, both in ancient and in modern times. "This therefore, (says, Sir William Temple, when speaking of the constitution of the ancient Germans, from which our own is, as we have seen, derived) is that constitution, which has been celebrated as the truest and the justest temper that has ever been found out between dominion and liberty; and it seems to be a strain of what Heraclitus said was the only skill, or knowledge of any value in politics, which was the secret of governing all by all" (Sir William Temple, Miscellanies part ii. p. 255.) Surely, if ever there was a principle of plain sense, this is one; for who so likely to promote their own interests as the persons most concerned in it? Who so eager to apply the cure, as those who feel most acutely the smart of the disorder?

Gentlemen, I am further charged with having said, that "if governments were to instruct the poor instead of hanging up their [Page] bodies on gibbets, the voice of the people would then be the voice of God." Now, what do these words amount to? Why, that since every government claims a right to punish, it is previously boned to instruct the subject in what he should do to avoid it. For, as the just powers of government, as we have before had occasion to observe, are derived from the people; so no people either will delegate, or can have a right to delegate, to any set of men, the power of wantonly inflicting pain upon them; which, undoubtedly, would be the case, if the subject could, without injustice, suffer the penalty of a law, even though he had not been previously told of its existence. I speak not, now, of those moral laws which pure native intellect enables us to discover, and which may be read, as Dryden says, without the spectacles of books, but merely of those positive regulations of society which mere human intellect alone cannot know to be breaches of duty, unless previously instructed. In these cases, then, to withhold instruction is, on the part of government, not merely the omission of duty, but the commission of a crime; and society sins against the man before the man can sin against society. I therefore infer, that instruction alone can constitute a duty, and that laws can enforce no obedience but where they are explained. This, my lords, is not factious doctrine, nor calculated to weaken the principle of obedience to the laws: they are precisely the sentiments of Sir William Blackstone, a judge whose principles were most unquestionably loyal, and who makes exactly the same distinction, as I have done, between the mala prohibita, and the mala in se; Blackstone's Commentaries, Vol. iv. p. 8. between offences against the law of nature, and offences against the state. The lawfulness of punishing criminals, says he, is founded upon this principle, that "the law, by which they suffer, was made by their own consent; it is a part of the original contract into which they have entered, when first they engaged in society; it was calculated for, and has long contributed to their own security." Now, if the consent of the punished be the only lawful principle of authority on the part of the punisher, that consent must be either express or implied. That it is an express consent, it can never be contended, and as to an implied consent, we are still authorised to ask, what is the ground of the implication?

The publication of an act of parliament (the only mode of publication which government condescends to make use of) by the king's printer, only—in the old German character, which few men can read—and which is sold at a price which as few can afford to pay, rather resembles the behaviour of Caligula, the Roman tyrant, who (according to Dion Casius) wrote his laws in a very small character, and hung them up on high pillows, the more effectually to ensnare the people, than the conduct of a legislature, whose authority, being founded on the consent of the people, must, of course, break their trust, whenever they violate the principle which created them.— To read to the prisoner, for the first time, when he stands at the [Page] tribunal, any act, for the breach of which he is arraigned, is to him precisely the same thing as it would be to originate it at the time by the same tribunal, for the express purpose of condemnation. In such case, indeed, he may perish by the forms, but certainly not by the principles of justice. Sir William Blackstone also regrets the frequency of capital punishments to be found in our code; and feelingly says, ‘that it is a melancholy truth that among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared by act of parliament to be worthy of instant death;' and adds, 'that so dreadful a list instead of diminishing, increases the number of offenders.’

Gentlemen, it was upon a painful review of this subject, that I asserted that ‘government▪ had far better instruct the people than hang up their bodies on gibbets;’ for as there is something in the nature of man, that so severe punishments have never been found effectual to prevent any sort of crime. The most effectual way to prevent crimes is, to prevent the temptation; to take care that the people be educated in virtuous principles, and every man brought up and enured to labour and industry, that has no estate to subsist on. If this be not done laws may be avenged but cannot be obeyed; they may inspire terror, but can never command respect.

Gentlemen, I must observe, and I think it lies within the compass of my defence to state to you, that we can only be innocent in coming down for the purpose of procuring reform, upon this supposition that reform was necessary, and if I had not been allowed to go into the proof of that fact, I should stand in this melancholy situation—that a charge would be brought against me, and the only proper means of repelling that charge would be denied me.

Gentlemen, I now come to the dissection of the evidence, which I trust, you will find to be so scanty, and insufficient, as that it is impossible to fix upon me any well-grounded and colourable charge of sedition.

Gentlemen, the phantom conjured up to terrify the timid, the Medusa's head which is to petrify you all with horror and astonishment, is the motion attributed to Mr. Sinclair, (but which I shall, shortly, prove to you never passed) which not only inculcated the principle of resistance, but with the British Convention it is asserted meant to carry into execution.

I was not a little surprised to day, to hear this legal and constitutional principle denied in round and unqualified terms; when it should be recollected, that it is to this principle we owe our liberties. The right of self-preservation, is a right of which no human institution can divest us, since human institutions themselves, were formed only the more completely to accomplish that [Page] end. To support any political institution, therefore by the destruction of that principle would be absurdly to sacrifice the end to the means. ‘If the laws of God and men (says Sydney) when the magistracy is left at liberty to break them, and if the lusts of those, who are too strong for the tribunals of justice cannot be otherwise restrained than by sedition, tumults, and wars,— those seditions, tumults and wars, are justified by the laws of God and man.’ Sydney on government, p. 188. For as all magistrates were set up for the good of the people; so whenever they act contrary to the end of their institution, they may be lawfully opposed; Quia eatenus (as Grotius well observes) non habent imperium. De Jure Belli, l. 1. c. 4. Here then, gentlemen, you see the principles of resistance laid down by a writer on the civil law (with whose works, their lordships are, possibly far better acquainted than I,) and recognized also by that sage and hero the immortal Sydney, who, after a life spent in a continual struggle against vice, tyranny and faction, fell a martyr at last to the liberties of his country. The sentence passed upon him, however, by the infamous Jeffries, has met with the unanimous execration of posterity, and his attainder was accordingly repealed among the first acts which took place at the Revolution.

Gentlemen, were I called upon to give a definition of sedition or of rebellion, I would frankly avow, that I know of no other than this; the conspiracy of the law against the interests of the many. And this rebellion may be equally carried on by those who are entrusted with the power of the state, as by those who originally conferred it, and who are the objects of its exercise. ‘If those who by force take away the legislature,' says Locke, 'are rebels, the legislators themselves, as has been shewn, can be no less esteemed so, when they who were set up for the protection and preservation of the people, their liberties and properties, shall invade and endeavour to take them away: And so they, putting themselves in a state of war with those, who made them the protectors and guardians of their peace, ARE PROPERLY, AND WITH THE GREATEST AGGRAVATION REBELS.’ Treatise on Government, octavo edition, p. 294, 5.

This principle of resistance, gentlemen, is deeply interwoven in our constitution, and is as strongly laid down, even by writers on our municipal law, as it is by those, who are philosophical and speculative. ‘The liberties of Englishmen (says Blackstone, Vol. I. p. 144.) should be perfectly known and considered by every man of rank and property lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other.’ Nor do I apprehend that this knowledge of the rights of Britons, is to be limited merely to men of rank and property since [...]he poor man is, and by the same means too, equally entitled to the preservation of his mite, as the rich man to the enjoyment [Page] of his millions. And of this opinion also seems to be the learned judge, when, shortly after, he says ‘to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place,’ (the word subjects is certainly equally applicable to all descriptions, high and low, rich and poor) ‘to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and lastly, to THE RIGHT OF HAVING AND USING ARMS FOR SELF-PRESERVATION AND DEFENCE.’ Vol. 1. p. 144. Thus you see, gentlemen, that these principles are neither new nor dangerous; not new▪ because co-eval with the Revolution; not dangerous, because avowed by a calm philosophical writer who enjoyed the favour and patronage of his sovereign, and since supported by the authority of an eminent writer whose office it was to lay down the principles of law, and administer justice to the subjects of these realms.

Gentlemen, I defy our bitterest enemies to prove that it was ever our intention to make any practical application of these doctrines; for, as the same learned judge well observes, "all oppressions, as they may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any stated rule, or express legal provision;" so I say with him also that "if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies." Blackstone, Vol. 1. p. 245.

Gentlemen, I shall now state to you, as shortly as I can, what was said by the witnesses. Mr. Scott says, I think, among other things, that when he came into the convention, on the 6th of December, he asked the chairman the object of our meeting. The reply was, that we were met for the purpose of addressing the king.

Mr. Davidson tells you, indeed, that he came for the purpose of dispersing the meeting. He was asked, also, if there was any appearance oi tumult. He answers in the negative; that there was no appearance of tumult and disorder, though the president was forcibly taken out of the chair; to whom he, at first gave a friendly shake, though he was afterwards obliged to convert it into a Cornish hug. WE, then, gentlemen, were the persons who were forcibly assaulted; but we did not make use of force for the purpose of repelling force.

Gentlemen, the external proofs that have been alledged, particularly of this resolution which was said to have passed, amount to what? They amount, in fact, merely, to this, that a number of papers were taken from a public Inn by the officer, and put into a loose bundle; then taken by him to the sheriff's office, where they were left for some time, without any particular attention being paid to them; certainly in so loose a state that it was very possible for any other papers to have been put in; consequently all degree [Page] of credibility due to the evidence is done away, inasmuch as they were not sealed, though I understand it is always the custom to seal up papers, as it appeared from the evidence delivered to-day at the ba [...]. For, I conceive that, after they have been in that loose state, [...]t is impossible ever to identify these papers, unless the man has the faculty of looking through a pocket handkerchief. How is it possible, if the papers had been taken and put into a loose bundle, and suffered to lie a considerable time without any actual inspection, and several persons being in the room; how is it possible, I say, that these papers can be proved to be the same that were taken out of the room of Mr. Sinclair?

Gentlemen, you will find one material circumstance, however, to which, I trust, you will give your most mature consideration, to which is, that an [...] attempt to identify those papers should, by all regular and due course of evidence, have been made, before they are produced to the jury, as the ground of criminating any pannel at this bar; for, if they are not indentified, I do not see with what colour or justice they can be brought forward for the purpose of criminating any person. This paper is not proved ever to have been adopted as a resolution by the convention. It no where appears, even in what is called the minutes of the convention, but which I deny to be the minutes of the convention; nor is there any proof that ever they were adopted by the convention as their minutes. It ought to have been proved in the hand writing of Mr. Sinclair who is the reputed author of this motion; and even if an attempt to identify his hand-writing had been made, even then I say the evidence would still have rested upon a very precarious foundation. In the case of Algernon Sydney, it was a similarity of hand-writing that was the principal ground of his conviction. That very circumstance, also, gentlemen, is recited in the act of parliament as one of the principal grounds of reversing his attainder; though the paper alluded to, was found in the closet of Colonel Sydney, as this paper is said to have been found in the room of Mr. Sinclair. Sydney himself well observes, upon his trial, "that similitude of hands is nothing; as hands may be so counterfeited, that no man shall know even his own hand. A gentleman that is now dead," says he, "told me that my Lord Arlington, about five years ago, desired him to write a letter and seal it as well as he could. He wrote it with care, and sealed it with a wafer and wax upon it; and within a few days my Lord Arlington brought him five letters, and he did not know which was his own." Trial of A. Syd. p. 31. If, then, gentlemen, even if there had been actual proof that this was in the hand-writing of Mr. Sinclair (a circumstance which never could be proved, and which has not this day been attempted to be proved), if such actual proof, I say, would not have been admitted as sufficient evidence to criminate Mr. Sinclair, inasmuch as the motion in question never became part of the minutes of the convention—far less should this scroll of paper condemn me, who am only accused of verbally supporting [Page] the written motion which Mr. Sinclair is said to have made. If upon the trial of this excellent young man, who, at a period of life, which the greater part of mankind consume in frivolous or vicious dissipation, is dedicating his whole time to promote the happiness of his fellow-creatures; if upon a subsequent trial an honest and impartial jury shall, as they must, acquit him of the charge, both upon a general conviction of his innocence, and particularly, upon the insufficiency of the evidence brought against him, what must be the remorse, what the anguish of that jury, who shall have condemned the accessary upon that very evidence, which, on the fullest investigation, shall have been found incompetent to the conviction of the principal? This event, were it possible to happen, I should most deeply deplore, not merely on account of my own personal sufferings, but for the scandal it would affix to the administration of justice, for the disgrace it would bring upon our common country; and, above all, for the deep and lasting infamy that it would entail upon you, my countrymen, gentlemen of the jury. In such case, the principle of my condemnation would even be worse than that of Sydney; posterity would review it with equal abhorrence, and therefore let me conjure you, as you tender not only my safety, but your own personal reputation, suffer not the iniquities of those times to be revived and imputed to these.

Mr. Mack tells you, that he did not get the papers from Lyon, that they were lying in the room in the sheriff-clerk's office carelessly. Mr. Skirving's papers were sealed it seems; but this motion upon which the great ground of criminality is laid, is suffered to lye loose. If that precaution was not taken equally in all cases, I certainly ought not to suffer for the negligence of the officer.

There is one certain and infallible proof, gentlemen, that this motion, upon which so much stress is laid, never did, in reali [...], pass in the convention. It has come out in the evidence, that [...]e motion was marked by Mr. Aitcheson—if then, it was marked by him, it clearly could not have been adopted by the convention; for if it had, it would have gone into the hands of the Secretary, who would have marked it with his own signature, and it would have constituted part of the minutes. On the contrary, you have strong circumstantial proof (the best that the nature of the case will admit) that so far from passing in the convention it was even laid aside; inasmuch as it was only marked by Aitcheson, and not by the secretary whose practice it was invariably to mark them as an essential preparative to their insertion in the minutes. Besides gentlemen, where was this paper found? Was it found in the possession of Mr. Skirving, when all his papers were seized, and to whose custody all resolutions that passed in the convention was regularly committed? No; it was not even pretended to have been so found; it is stated to have been found in the custody of Mr. Sinclair alone who was a simple member of the convention, and who was never entrusted with the guardianship [Page] of its minutes. This single fact renders all reasoning upon the subject unnecessary. It amounts to a moral demonstration of what I advance; and he who would not be convinced by proof so glaring, and facts so undeniable, would not receive conviction though one should rise from the dead.

Gentlemen, you no doubt, are well aware, that it is the duty of jurymen to find the verdict secundum alegata et probata, according to facts alledged and proved. Many principles contained in those speeches attributed to me I glory in having uttered, as they are perfectly reconcileable with the soundest principles of government and good order. But there are parts of those speeches which are false and spurious. Animated as I am, with a love of truth, and determined to tell it at whatever hazard, I will neither assume what I have not said, nor deny what I have said. If then, you give me credit, which, I am sure, as honest men you cannot withhold from me, for my veracity and openness in one instance, you have no right to mistrust me in another.

I have already told you, that as jurymen you are bound to find a verdict according to facts alledged and proved. I, now, gentlemen, will seriously ask what evidence have you, that the speeches charged in the indictment, and which are copied from the Gazetteer, are the real speeches which I made in the convention? What is the mode of proof? Thomas Cockburn tells you that he had a general collection, when he was in the habit of reading the Gazetteer, that they bore a resemblance to the speeches which he has heard me make in the convention. Gentlemen, I trust you are well aware of the sacred duty which you are now to execute, and that you will be of opinion, that in a case so solemn as the present, a bare general collection of what is said, or supposed to be said, in the heat of debate, will never constitute a sufficient ground of criminal conviction. I allow, that in t [...] ordinary intercourses of life, a general collection is certainly su [...]nt ground whereon to form a judgment, otherwise human affairs [...]st stand still. But you are not now met for the ordinary purposes of life; you are met to determine the guilt or innocence of a man, accused, on the one hand, of having disturbed the peace, and esteemed on the other, for having attempted to promote the good of his country; and upon your determination will rest, not only his fortune and his fame, but, in all probability, his life itself. What then is the evidence upon which this great stake depends? Mr. Cockburn, when pressed by my counsel, who, through the whole course of the cause have conducted themselves, not only like able counsel, but like firm and inflexible patriots, says, that he cannot identify one single passage. What does this confession amount to? That he cannot swear they are the speeches I made; for, if the terms general recollection have any meaning at all, I apprehend they have this meaning, that all general recollections are composed of the recollection, of some particular passages. Now, he does not identify one single passage. Some of them you may deem criminal, and others innocent; nay, even meritorious; and therefor [...] [Page] I presume you cannot convict any pannel upon such loose indeterminate evidence; which is, at least, as likely to fix upon him what is praise-worthy, as it is to charge him with what is criminal. But he recollects, 'a great many words interspersed in that speech.' Why, doubtless, gentlemen, when Mr. Cockburn had heard any person speak for a considerable length of time, he must have some recollection upon his mind of what had passed; but I trust that words interspersed through a speech are certainly too loose to found a verdict of conviction of a far less crime than that of which I am accused, and to authorise a punishment of far less severity than such as if convicted I shall inevitably suffer.

This gentlemen is, so far as concerns the first speeches. But of the second speech he says he recollects less than of any other; though this is the speech upon which Mr. Solicitor General chiefly founds his charge, and against which he has planted the whole artillery of the law. After all, gentlemen, the witness, though closely pressed in his examination by the crown lawyers, closes his evidence with these remarkable words 'that he does not mean to identify any of the speeches.

Gentlemen, if the freedom and lives of British subjects are dependant upon the loose and general recollection of words spoken too at a considerable distance of time, we may, indeed boast our liberties and the benignity of our laws, but they are merely an empty boast, and not a solid and substantial good.

But, gentlemen, there is one circumstance still stronger than any I have stated to you. If any persom might be supposed to retain an accurate recollection of the speeches, it must be William Ross, who being able to write short-hand, would in all probability carry away with him, with more accuracy than any other person, the speeches which are attributed to me. Ross tells you, he never took notes by the express direction of the convention, nor ever published them by their order. Now, if charges of criminality are to be brought forward against men upon such loose evidence as this—the unauthorised transcript of a short-hand writer, and which transcript, or even verbal evidence, is to be taken as proof—we must deem the judicial process of our country not a shield of protection, but a rod of chastisement. Persons actuated by malicious motives, the retainers of a profligate administration, may enter the meetings by a short-hand writer, and, for a small gratification, may induce him to take down, as the speeches of any member, words highly criminal, but which at the same time have never been spoken; and afterwards, by procuring them to be inserted in a newspaper, may subject the party to a state prosecution. Against this engine of persecution what remedy has innocence? Why, the party aggrieved, may prosecute the printer for a libel, I mean if he has money, for that is a necessary ingredient to the attainment of justice: and if he has none, however deep the injury, and calamitous its consequence, he must sit down silent under the charge, until he has an opportunity of [Page] vindicating his innocence in court when the Lord Advocate, who is, ex officio, the guardian of our liberties, shall be graciously pleased to drag him, as the ill-fated victim of a state prosecution.

Gentlemen, the rules of evidence, being all founded upon the plain principles of common sense, must in all countries be nearly the same. In an English Court of Judicature the evidence produced against me would, I am certain, be deemed incompetent to a conviction on the slightest charge. Why then in Scotland should not an equal measure of justice be meted out to me, an Englishman, which you, though Scotsmen, would in England readily obtain?

Furthermore, Ross the short-hand writer swears that he is not very well skilled in his art—which, even in the most skilful, is a fallacious mode of identifying a speech—nay, that he was afflicted with deafness when he attended the convention, and, having frequently lost the thread of my discourse, inserted of his own invention, a great part of that which appeared in his paper. Gentlemen, is not this single confession sufficient totally to destroy the identity of the speeches, and consequently the solidity of the evidence against me? A question was asked by one of the jurymen which carried with it an apparent weight—whether any of the convention had complained that their speeches were inserted or misrepresented? To which Ross answered, No. I am sure you cannot but be aware, that if the members of the convention had been in the constant habit of complaining of all the misrepresentations which the lying breath of rumour had circulated against them—if they had thought it necessary formally to contradict whatever malice propagated and credulity received—the object of their mission must have been entirely abandoned; and instead of asserting those principles which we felt to be just, our time would have been consumed in refuting aspersions which we knew to be false. No! gentlemen, we rested upon the consciousness of our innocence, and upon the broad basis of public confidence, to which our honest and disinterested exertions had given us a claim.

George Ross depones, that I had no knowledge of the insertion of the words, Ca ira, Vive la Convention, Liberty Hall, &c. but that he himself was the person who inserted the [...]. I should not have repeated this insignificant circumstance, but that I observe unfair inferences have been drawn from them, in order to load us with additional guilt.

Gentlemen, I hold this to be a sound principle both of reason and of law, that if you once can prove that any meeting was in itself legal, though after the meeting any illegal resolutions were adopted, provided it cannot be proved that you were present at those meetings aiding and abetting those illegal resolutions so passed, no degree of criminality can possibly attach to you.

You are then to advert to the general principle which proves the illegality of the meeting, and not to the particular resolution which if you did not support can never be brought in evidence against you. Much stress has been laid upon this committee of secrecy, upon which [Page] very strange and contradictory language has been held by the public prosecutor. Sometimes we are represented [...]s a set of desperadoes, who met in open day for the purpose of violating the laws and the subsisting constitution of the country: at other times that we met in holes and corners, as our projects were so nefarious that they could not bear the light. To round the circle of contradictions, a learned judge upon the bench has declared, ‘that however criminal our intentions, our conduct was open, and in this respect our imprudence was equal to our guilt.’ By these various and even opposite charges, the punishment inflicted by the Sicilian tyrant is realized upon the unfortunate members of the convention—stretched upon the iron bed of legal torture, if too long we are lopt, if too short we are stretched. If we act with openness, there our candor is audacious guilt; if secretly, we only refrain from insulting our country by the publicity of our measures, that we may in greater security accomplish her ruin. Seven men, it seems, were deemed sufficient by this resolution, to constitute a convention, which was to overturn the government! Absurd and impossible supposition! Were our rebellious troops, like those of Mr. [...]ayes, at Brentford, to start up when called for? Or, is it supposed that we were to realize the fable of Pyrrha and Deucalion, and generate men by casting stones behind us? The very supposition of your giving the smallest degree of credit to this absurd allegation, would reflect such disgrace upon your understandings, and is so highly derogatory to the British Constitution, the principles of which are the objects of universal reverence, that I cannot entertain it for a moment. For feeble, indeed, must the foundation of that constitution be, which can be even endangered, much more overturned, by a meeting of no more than seven individuals.

Gentlemen, from a particular expression stated in this indictment, calamitous circumstances, you must see that we looked upon every invasion to be calamitous, from whatever quarter it proceeded;— but, if we had intended to make an open opposition to the laws of our country, or were plotting its destruction secretly and in the dark, we should, certainly, never, have used an epithet of that description. The very insertion of the term calamitous proves to a moral demonstration that all invasions, from whatever quarter, would have been deemed objects not of approbation, but of regret.

Gentlemen, it has been said, that the admission of foreign troops into Great Britain was also one of the calamitous circumstances which would induce the convention to meet again. To this charge, if it will avail any thing to the public prosecutor, I freely plead guilty. As a Briton I shall ever think myself bound to watch with anxious attention the introduction of any foreign troops, and upon this plain principle, that I conceive the native valour of Britons is always adequate to their own protection. If it be otherwise, we hold our freedom by the most brittle tenure—for as foreigners can [Page] have no common interest with Britons, the same mercenary arm which protects us for pay may enslave us for plunder. But what does this resolution state? That we will do any thing unconstitutional? Far from it. It states that "we shall follow the wholesome example of our ancestors, by paying no regard to any act which shall militate against the constitution of our country." Now, before government can properly make this resolution a ground of criminal accusation against us, they must confess that they either had passed, or meaned to pass an act, militating against the constitution. For under no other circumstance was any opposition mentioned, or intended. Is it not rather singular then, that before they can infer our guilt, they must confess their own? Acts of parliament are in general sacred things, but they may be, in particular cases, so grievous and oppressive, that human nature will revolt from them. The constitution, as Treasurer Burleigh long since observed, can never be undone but by a parliament; which proves however, that a parliament may undo it. In the reign of Henry VIII. an act of parliament was passed, giving to the proclamations of the crown the validity of a law. It was also made a capital offence for any person to foretel the death of the king—in consequence of which, Sir Anthony Denny, his physician, when he lay at the point of death, was af [...]aid to mention to him the danger of his situation. To judge or believe that Anne Cleves was not a virgin when she married him was declared high treason. Until very lately for a gipsey to remain twelve months within the kingdom was declared felony without benefit of clergy. In Scotland, Evenus the third king of that name, caused a law to pass, by which the wives and daughters of noblemen were exposed to his lust, and those of the commons to the lust of his nobility. Tulit legem Evenus ut c [...]ivis liceret, pro opibus quot alere posset, uxores ducere; ut rex nuptias sponsarum nobilium, nobilis plebeiarum proelibarent pudicitiam, ut plebeiorum uxores cum nobilitates communes essent. BUCH. L. 4. c. 14. Many other acts might be mentioned which have long blotted and disgraced the statute book; are these acts, then, in the eye of reason, proper objects of obedience? Nay, are they not rather honoured in the breach, than the observance? "Laws," says Hooker, "must be obeyed, unless there be reason showed that the law of reason, or of God, doth enjoin the contrary," ECCLES. POL. B. 1. sec. 16. Which plainly implies that there are bounds to the civil obedience of the subject. Acts, then, which are subversive of our happiness, are contrary to every right of civil society and comfort, utterly incompatible with all laws either moral or revealed, and therefore mere acts of power, having neither the force not validity of a law. But I deny that it was ever the intention of the Convention to resist any acts by force. The words of the resolution are, "unless compelled to desist by superior force." What was this force to be superior to? Why, forsooth, to twenty-one members peaceably met, and peaceably discussing political subjects. [Page] Nay, do not the very words themselves plainly import, that though the mere mandate of the magistrate (as such a mandate would be a gross violation of the law which he was bound to observe) would be disregarded by the Convention, yet the appearance of force would be the signal of dispersion? For upon what principle of common sense, or probabilities, can it be supposed that we should have wantonly exposed our lives to certain destruction by an appeal to arms; we, few in number, peaceful in intention, without ability to act, without hope to succeed, without power, without influence, without motive, without means?

But the sincerity of this declaration has been already evinced by a fact of recent date and public notoriety. When Mr. Sheriff Davidson, on the last evening on which the Convention sat, entered the hall, attended by constables and other officers, belonging to the civil power only, did the slightest symptom appear of an inclination to resist? No; Mr. Margarot and myself, who successively acted as presidents that evening, were indeed forcibly pulled out of the chair; because, as we were conscious, that we could not be legally ordered to quit it, a voluntary abdication would have been justly interpreted as a dereliction of our right. But did we resist, I again repeat? No; Mr. Davidson's testimony this day, has confirmed my assertion. We dispersed, he tells you, without tumult or disorder. It was we, then, against whom force was employed, but who employed none. We suffered injury but offered none.

The introduction of foreign troops into the kingdom, without the sanction of parliament, is an infringement of the Bill of Rights, and a violation of the constitution of our country. Doctrines, I know, have been openly avowed by the minister, justifying the measure as legal and constitutional; but this avowal, I believe, struck every one who heard him, his own creatures excepted, with horror and astonishment; nor do I apprehend, that at a future though not distant period, he will be fond of repeating what in the plenitude and insolence of power he has lately advanced.

Lord Stanhope, who is a member of that legislature which ought to be the peculiar guardians of our rights and privileges, and who, I believe, is as incorrupt a senator as ever this country gave birth to, since, like another Socrates at Athens, he preserves himself free from the contagion which is every where raging around him; Lord Stanhope, I say, with his accustomed honest daring thus expressed himself upon the subject of which I am now speaking "Armies (said he) have in all ages been the engines of tyranny, and by them the civil rights and liberties of all nations have been destroyed. The measure is of itself such a flagrant violation of the constitution, that if the same arguments are used in support of it in this house which have been used in another place, I make no difficulty in declaring that the authors and abettors of such blasphemous doctrines ought not to survive their treason. I feel (continued he) as little difficulty in declaring that IF THOSE TREASONABLE DOCTRINES ARE ATTEMPTED TO BE PUT INTO EXECUTION BY THE EXECUTIVE [Page] GOVERNMENT, IT THEN BECOMES THE DUTY OF THE PEOPLE TO RESIST FORCE BY FORCE." If then, this excellent man could hold, with impunity in the senate himself, and in the presence of the great officers of state, these bold but constitutional doctrines, upon what pretext of law, or under what colour of justice can you presume to punish me, who have merely stated hypothetically, what he has advanced, plainly, openly, unconditionally?

Gentlemen, I cannot but observe one very unfair suspicion which the crown lawyers have endeavoured to infuse into your minds during the course of these trials▪ In order to inflame your passions, at the same time that they may assume to themselves an appearance of lenity, they tell you that the crimes with which we stand charged approach very nearly to high treason; and an appeal, not very honourable I think to the appellants, is continually made to old and obsolete statutes, on which state prosecutions were grounded when tyranny was at its height, to prove, that had we fallen, like the apostles of freedom, in the last century, on those 'evil days,' like them too we should have been the victims of a legal tyranny. This procedure I must consider as abhorrent, from the cool and sober rules of justice. Suffer not, therefore, I conjure you, your tempers to be inflamed, to the destruction of an innocent man, because the public prosecutor, in the rage and phrenzy of loyalty, has though proper to dig into the dusty rubbish of antiquity, under which the embres of despotism have long been smothered, and to ‘awaken those sleeping lions by rattling up a company of old records which have lain for so many ages by the wall neglected and forgotten*.’

Gentlemen, another circumstance, upon which much stress has been laid, is that of a blank appearing among the minutes; and as this blank followed after the resolution which we have just now been discussing, it has been unfairly inferred, that it was our intention to fill it up with matter, at a proper and convenient season, the publication of which would have amounted to high treason. But, gentlemen, if you will turn to the minutes, you will find that there is not one blank alone, but many. And this circumstance, when coupled with the observation of the Solicitor General, must convince you how extremely dangerous it is to condemn any man upon the evidence of these minutes, which have been so long in the possession of those who are the officers and dependents of government. For, as state prosecutions are frequently the instruments, by which a profligate administration sacrifice the bold and incorruptible exposers of their measures, so it is always in the power, as, no doubt, it must be frequently in the inclination of the public prosecutor, to fill up the blanks with more heavy and additional matter, which being confounded with the original minutes, may be offered in evidence to a jury, as a sufficient ground of conviction for high treason.

[Page]The difference of process and of the criminal codes of Scotland and England must, to every thinking mind, be a subject of most serious alarm. In the southern part of the kingdom, nay, in the capital itself, the seat of the legislature, and the fountain head of all justice! men are suffered to meet under the very beard of the Secretary of State, and to pass with impunity resolutions exactly corresponding in principle, and equally strong in expression with those, which if passed in Scotland, will send both the mover and seconder, in company with thieves, felons, and murderers, to toil and perish on the bleak and inhospitable shores of New-Holland. Is the Tweed then, which the God of nature has made only to be a geographical separation between the two countries, by the folly and wickedness of man to be perverted into a legal, a moral, a political separation? The resolution to which I have just now alluded was a resolution passed by the London Corresponding Society, and is as follows; ‘That during the ensuing session of parliament, the general com [...]tee of this society do meet daily, for the purpose of watching the proceedings of the parliament and of the administration of the government of this country. And that upon the first introduction of any bill, or motion inimical to the liberties of the people, such as, for LANDING FOREIGN TROOPS IN GREAT BRITAIN, or IRELAND, for repealing the HABEAS CORPUS ACT, for proclaiming MARTIAL LAW; or for PREVENTING THE PEOPLE FROM MEETING IN SOCIETIES FOR CONSTITUTIONAL INFORMATION, OR ANY OTHER INNOVATION of a similar nature; that, on any of these emergencies, the general committee shall issue summonses to the delegates of each division, and also to the secretaries of the different societies affiliated and corresponding with this society, forthwith to call a GENERAL CONVENTION OF THE PEOPLE, to be held at such place, and in such a manner as shall be specified in the summons, for the purpose of taking such measures into their consideration.’

‘Resolved—That the preceding address and resolution be signed by the chairman, and printed and published.—J. MARTIN, Chairman. T. HARDY, Secretary.’

Upon these resolutions, though circulated throughout the united kingdoms, no prosecution has been grounded. Are we not then to infer, either that the Secretary of State has been criminally negligent of his duty, and that though he crushes sedition in Scotland, he tolerates it in England; or, for upon no other principle can he be excused, that the resolutions and the publication of them is perfectly harmless, and that the code of Scotland which marks them out as objects of punishment, like that of Draco, is written in blood.

Gentlemen, during my trial a principle has been laid down by the Lord Justice Clerk, which I deem to be in the highest degree, reprehensible, as it strikes at the root of that confidence which all men should repose in law, and of that security which all men have a right to expect from it. The Lord Justice Clerk declared that the judges had a discretionary power in annexing the punishment to the particular [Page] crime of sedition. Had a judge in England held a similar doctrine, the judgment seat would have tottered under him. If law be a certain rule of action, defining the offence and annexing the punishment, the degree and nature of the punishment should be specified, with equal precision as the degree and nature of the offence; otherwise we hold our freedom as mere tenants at the will of a judge, and not as we ought, by the known and explicit declaration of the laws. Lord Camden, the first law authority in England, has said, that, ‘DISCRETION IS THE LAW of tyrants; in the best men it is caprice, in the worst it is every folly, vice, and infirmity to which human nature is liable.’

Gentlemen, let not the word discretion mislead you. Legal discretion is not the arbitrary discretion of the judge. No; it is, as well defined by Lord Coke, discernere per legem quid sit justum, "to discover through the medium of the law that which is just and proper." [...]udges must determine," (says the preamble to an old statute o [...] [...]enty VII.) "not by the crooked co [...]d or discretion, but by the golden met-wand of the law." A beautiful expression, and full of intrinsic wisdom.

"Misera est servitus, (says Lord Coke), ubi ius vagum atque incognitum est:" "wherever the law is vague and uncertain, the people are in a state of wretched slavery." And that law is certainly vague and uncertain, which not specifying the punishment as well as the crime, leaves it to the arbitrary discretion of the judge.

Gentlemen, my feelings, my exertions, and my state of health have exhausted me.

Lord Henderland. You may sit down Mr. Gerrald, and take a little breath.

Mr. Gerrald. I thank your lordship.

(Mr. Gerrald having rested a few minutes proceeded as follows:)

Gentlemen, I trust that I have now proved to your conviction the general purity of my intention, of which the object was to carry into execution, a constitutional reform in a peaceful manner; that however we may differ as men and citizens upon speculative principles of government, yet the doctrines which I have advanced are founded upon the great and immutable principles of reason and of truth; that they are the sentiments of the most revered writers, Locke, Sydney, Jones—that even Mr. Pitt and the Duke of Richmond formerly professed to act upon them; that they are perfectly congenial to the spirit of the Anglo-Saxon government, and not in a great degree differing from the principles of the old constitution of Scotland, as Dr. Stewart has proved to you; that our peaceful resolution of obtaining a reform was never violated by our practice, as the testimony of Sheriff Davidson evinces; for when assailed by the civil power we repelled not force by force— that the officers of the law violated the law in their illegal assault upon our persons; and that even then such was our desire to preserve [Page] the public peace, that we chose rather to suffer than to act;— though we could have acted under the shelter of those laws which we are falsely charged with having a design to subver [...]

As men whose rights and security are interwoven [...]th our own, advert, I beseech you, to the circumstances of our dispersion. The first magistrate in this city, attended by a posse of constables, enters the convention hall, when the members who composed that convention were assembled upon a legal principle, for a constitutional purpose, and conducting themselves in a calm and peaceful manner. Without reading the riot act, for which indeed, he could have no pretext from the object and conduct of the meeting, he forcibly drags the president from the chair and disperses the convention. At a future day, when a meeting is advertised to take place, not as the BRITISH CONVENTION, but of THE FRIENDS OF THE PEOPLE, the magistrates of Edinburgh, attended by the town guard block up the passage to the house which we had hired as a place for our calm and peaceful discussion, and, though not the slightest appearance of tumult existed, forcibly prevent the members from assembling.

Gentlemen, if the principle upon which these magistrates acted be a principle authorised by any human code, I say that its operation and effect must be the basement of the human species and the extinction of civilized society. It divests us of the right of exercising our power of reason, and places us in a situation beneath, the beasts that perish. If the magistrate of any country makes supposed principles and not actions the object of coercion; if upon his own loose constructions and speculations of danger he commits outrage, under pretence of preventing it; if instead of arguing from the consequence to the principle, he inverts every rule of right reason, and infers the consequence from what he thinks proper to adjudge the principles the safety and freedom of human action is at an end. In such case the magistrate takes upon himself to determine that which is undeterminable; to mark as an object of punishment not a present and actual, but a future, possible, and contingent consequence; and, by punishing motives, which have not displayed their qualities by their effects, to arrogate to his own limited and short-sighted capacity a privilege which belongs only to Eternal Omniscience.

Feeble, indeed, must be that civil government which depends for support, upon every trivial occasion, upon the aid of the military arm. But, in the case alluded to, we had at least one consolation; the soldiery who interposed were not a foreign but a British soldiery; and I trust, that however the latter may be, for a time, deluded, they will recollect, upon all great and trying occasions, that though necessity may have made them soldiers, yet society has made them citizens, and nature has made them men. But not only are the principles, which I defended, pure; but even had they been otherwise, the evidence, I affirm, which has been produced in order to [Page] fix them upon me, has been incompetent to its avowed purpose. Not the slightest evidence has been afforded, that the convention either published, or caused to be published by their authority, these serolls of paper attributed to them as their minutes. They never authorised the publication of any speeches which were made in the Convention; nor does it appear, by any testimony, that the speehes printed in the Gazetteer were identically the speeches delivered in the convention. On the contrary Ross, the short-hand writer, swears that he frequently inserted, from his own mind, words and sentiments which never fell from the speaker. There is no proof that the motion attributed to Mr. Sinclair, which is the great ground for criminating me, ever passed the Convention; and even if it had, an attempt to identify that motion with the paper produced, should certainly have preceded it being produced in evidence. Why was this attempt not made? The reason is obvious, it must, of necessity, have failed. For was it not proved to you, that all Sinclair's papers which were seized, were thrown into a loose bundle, unsealed, tossed for a considerable time about the sheriff's office, in a state in which it was very easy for any person to have inserted other papers not belonging to Mr. Sinclair, consequently all possibility of proving the identity of the papers absolutely destroyed.

With respect to the speeches attributed to me, not one witness would identify upon oath any one single passage which they contain. And even Cockburn, whose testimony upon that point is the strongest, declares, that he has only a general loose recollection of what passed; a ground certainly too scanty and insufficient for the conviction of a man whom the laws of his country presume to be innocent; and which presumption can never be destroyed but by the establishment of stronger proof. ‘Stabitur praesumpioni donec probitur in contrarium: The presumption stands till the contrary is proved.’ Co. Litt.

But the particular circumstance to which I beg to chain down your attention, is the assertion of the public prosecutor, that if you were convinced that my intentions were pure, you were bound in duty to pronounce my acquittal. Yes, gentlemen, this is the solid rock of my defence; the purity of the intention by which I was actuated. Could any thing but an ardent love of truth, and a desire of promoting the happiness of my fellow-creatures, have induced me to brave the present prosecution, and by dispelling the mist of prejudices which darkens their understandings, promote the happiness even of my prosecutors themselves? In this glorious, though arduous undertaking, by what possible motives of gain or ambition could I have been actuated? Examples have not been wanting of men of whom the world was not worthy, who have fallen victims to an active and zealous virtue; but their fate will never deter firm and well regulated minds from the performance of that which they will consider as the most sacred of duties, the fulfilment of their [Page] engagements to their oppressed and insulted country. These were the sentiments which actuated the conduct of our common master when he wept over the city. ‘O Jerusalem, Jerusalem! thou that stonest the prophets, and slayest them that are sent unto thee; how often would I have gathered ye even as the hen gathereth the chickens under her wing, but ye would not!’

In every relative situation of life, we should do our duty, however hazardous, and leave the consequences, which must be ultimately beneficial, to the supreme disposer of all human events.

Gentlemen, when you consider that one great object of the Convention was to promote a more close and sincere union between England and Scotland, you cannot reasonably convict, as a disturber of the public peace, any man engaged in so laudable an undertaking. Yes, it is our pride and our boast that the extinction of those national prejudices which have too long disturbed and disgraced both parts of the kingdom, was one great motive of our honest exertions. And, surely, our time is far better consumed in strengthening the cement of affection which, as inhabitants of the same island, it is so natural for us to feel, than in wasting and exhausting ourselves in the wrangles and contentions of the continent, by which we abandon our local advantages as in Flanders, and ultimately expose ourselves to become the prey of some foreign or domestic invader. To atchieve mighty conquests, is the lot of few; because few there are, who have either ability or opportunity to obtain them. But to cherish and desseminate the principles of peace and good will towards all men, is certainly the duty of all, because it lies within the power of all, and must contribute to the happiness of all. Moderate talents, steady exertion, and good intentions are fully adequate to this end. This was all to which the members of the Convention made pretence; and they repose themselves with confidence upon the judgment which their country may pass upon their conduct, whether the powers which they displayed, and the means which they adopted, were not well calculated for its attainment.

The Solicitor General, indeed, during the course of this trial, has distinguished me by a marked and particular compliment; but it was coupled with a charge, that, if I am guilty, must render me doubly so; that my efforts were exerted to disturb the peace of my country: No, gentlemen, whatever portion of talents God has thought proper to confer upon me has never yet been prostituted to so imfamous a purpose, and I turn with horror from a compliment to my understanding, which can only be purchased by the extinction of every generous sentiment of the heart, and the sacrifice of all things that are sacred among men.

Gentlemen, when I look forward to the political horizon, the prospect seems awful and gloomy to a degree, at which the best men must shudder, and the ablest men must feel themselves incompetent to describe. Every thing is turbid and portentous. Indeed a blacker [Page] cloud never hung over this island. Those who are versed in the history of their country, in the history of the human race, must know that rigorous state prosecutions have always preceded the aera of convulsion: and this aera, I fear, will be accelerated by the folly and madness of our rulers. If the people are discontented, the proper mode of quieting their discontents is, not by instituting rigorous and sanguinary prosecutions, but by redressing their wrongs, and conciliating their affections. Courts of justice, indeed, may be called in to the aid of ministerial vengeance; but if once the purity of their proceedings is suspected, they will cease to be objects of reverence to the nation; they will degenerate into empty and expensive pageantry, and become the partial instruments of vexatious oppression.— Whatever may become of me; my principles will last for ever. Individuals may perish; but truth is eternal. The rude blasts of tyranny may blow from every quarter; but freedom is that hardy plant which will survive the tempest, and strike an everlasting root into the most unfavourable soil.

Impressed with the justice of these sentiments, dungeons, fetters, exile, carry no horror to me; for I say, with the immortal Sydney, ‘though I have a particular love to my country, of which, I hope, that I have given some testimony; though I think that being exiled from it is a great evil, from which I would redeem myself with the loss of a great deal of my blood; yet, when that country of mine, which used to be esteemed a paradise, is now like to be made a stage of injury; the liberty which we hoped to establish oppressed; the best of our nation made a prey to the worst; the parliament, court, and army corrupted; the people enslaved; all things vendible, and no man safe, but by such evil and infamous means as flattery and bribery; what joy can I have in my own country in this condition? Is it a pleasure to see all that I love in the world sold and destroyed? Shall I renounce all my old principles, learn the vile court arts, and make my peace by bribing some of the crew? Shall their corruptions and vice be my safety? Ah! no; better is a life among strangers than in my own country upon such conditions. Whilst I live I will endeavour to preserve my liberty; or, at least, not consent to the destroying of it. I hope I shall die in the same principles in which I have lived, and will live no longer than they can preserve me. I have in my life been guilty of many follies, but as I think of no meanness. I will not blot and defile that which is past, by endeavouring to provide for the future. I have ever heard in my mind, that should God cast me into such a condition as that I cannot save my life, but by doing an indecent thing, he shows me the time is come when I should resign it; and when I cannot live in my own country, but by such means as are worse than dying in it; I think he shows me that I ought to keep myself out of it.’ See Sydneys Letters.

Gentlemen, I am in your hands, I feel not the slightest anxiety, if [...]ould promote the cause, I would cheerfully make the sacrifice; [Page] for, if I perish on an occasion like the present, out of my ashes will arise a flame to consume the tyrants and oppressors of my country.

Moral light is as irresistible by the mind, as physical by the eye. All attempts to impede its progress are vain. It will roll rapidly along; and as well may tyrants imagine, that by placing their feet upon the earth they can stop its diurnal motion, as that they shall be able, by efforts the most virulent and pertenacious, to extinguish the light of reason and philosophy, which happily for mankind is every where spreading around us.

Surely the experience of all ages should have taught our rulers, that prosecutions can never efface principles; and that the thunders of the state will prove impotent when weighed against patriotism, innocence, and firmness. Whether, therefore, I shall be permitted to glide gently down the current of life, in the bosom of my native country, among those kindred spirits whose approbation constitutes the greatest comfort of my living, or, whether I be doomed to drag out the remainder of my existence amidst thieves and murderers, a wandering exile on the bleak and melancholy shores of New-Holland, my MIND, equal to either fortune, is prepared to meet the destiny that awaits it. Seu me tranquilla senectus.

"Expectat, seu mors atris circumvolat atris,

"Dives, inops, Romea, seu forsita jussit."

EXVL.

To be torn a bleeding member from that country which we love, is indeed, upon the first view painful in the extreme; but all things cease to be painful, when we are supported by the consciousness that we have done our duty to our fellow creatures? and a wise man rising superior to all local prejudices, if asked for his country will turn his eyes from ‘this dim spot which men call earth, and will point, like Anaxagoras, to the Heavens.’ MILTON.

Gentlemen, my cause is in your hand.—You are Britons—You are freemen.—Nothing more therefore is necessary to be said. You have heard the charge, you have heard the evidence. And you know the punishment which follows upon conviction. Weigh well, then, whether the charge itself involves any guilt; whether the evidence produced affixes that charge upon me; and above all, whether, in case of conviction, the punishment which I am to suffer, is not more than proportionate to the offence.

Before I take my leave of you this night, perhaps for ever, let me remind you, that justice is in every situation, and in none more than that of a jury, to be adminstered in mercy. Upon your strict attention to this grand moral maxim, depends your own final doom and unalterable allotment, and to those who refuse to practise it ‘the throne of mercy will be inaccessible and the Saviour of the world will have been born in vain.’ Rambler.

Lord Justice Clerk.

Gentlemen of the jury, you have heard a great deal, and I will [Page] not keep you much longer, because I consider it as very unnecessary, in speaking to gentlemen of your found sense and understanding; you have given very particular attention, and are as able to judge of it as I am. The libel has been found relevant, after the most deliberate discussion, by counsel at great length; and it was also considered very fully from the bench: it was found relevant to infer the pains of law, and is now submitted to you, to try whether the pannel is guilty of the crime libelled, yea or no.

Gentlemen, the crime charged is sedition, and a very heinous crime it is; and nothing can strike more at the peace and quiet of society, and indeed it tends to subvert society altogether. The public prosecutor, in justice to the pannel, that he might be prepared for his defence, has charged different facts and circumstances, from which he infers the crime of sedition, and the libel concludes, ‘all which, or part thereof, being found proven, he ought to be punished with the pains of law,’ which in this case is an arbitrary punishment: the meaning of this is, that although the public prosecutor libels a variety of facts and circumstances, yet, if he brings a proof of such facts and circumstances as you shall be of opinion sufficiently supports the charge of sedition, you will find the pannel guilty, or the libel proven; and, if you think there is nothing to substantiate the charge, you will find the libel not proven, or find the pannel not guilty.

Gentlemen, the first thing you have to enquire into is, whether you think that meeting that denominated itself ‘The British Convention of the Delegates of the People associated to obtain Universal Suffrage and Annual Parliaments’ was a seditious meeting; and if you think it is not a seditious meeting, then, to be sure, you will acquit the pannel, because what is charged against him is, the part he took in that seditious meeting; but if you think it is a seditious meeting, then you will enquire whether the pannel is accessary art and part or not.

Gentlemen, as to the first question, how far there is evidence to establish this convention of delegates to be a seditious meeting it will occur to yourselves. Gentlemen, that there has been already, no less than two of your fellow-subjects convicted of the crime of sedition, as members of that convention, and accordingly condemned to transportation, and that there are other two indicted for the same crime, but did not think proper to stand their trial, and they accordingly stand fugitated by a judgment of this Court, Mr. Callander and Mr. Scott; you have, therefore, gentlemen, the verdicts of two very respectable juries stamping upon this meeting the character of seditious.

Gentlemen, it has been said, and much insisted upon, that it is contrary to the rights of mankind, in general, not to be allowed to apply to parliament. I don't say that is a criminal act, if it rested there alone; but, Gentlemen, I would submit to your own feelings, it is not a matter that rests upon evidence, but upon your own feelings, [Page] as men, as members of society, and as subjects of this kingdom, whether you feel any grievances that this country labours under, that should entitle them to make such a cry against the government of the country: for my own part (and I appeal to your own feelings if it is not a just observation,) I have always considered this country as the envy of the world at large, as the happiest kingdom upon face of the earth; and I submit to you, whether or not as much happiness does not exist in this kingdom as ever did? Every man is sure of enjoying every thing he has in perfect security: his life is secure, and his liberty is secure, by the laws of the country, and his property is also secure; he is absolutely certain that nothing will be taken from him that he has any right to enjoy.

And I submit it to you, whether or not even if there had been ground for complaints, it was a proper time to bring forward those complaints; at a time when we were involved in a war with a ferocious and cruel nation, at present setting the rest of Europe at defiance, and when the greatest unanimity, among the subjects of this kingdom, is absolutely necessary to put an end to that war; I submit to you, whether any good member of society, would prefer his complaint against the government of the country at such a time. But if you feel as I feel, that the complaints are groundless, and that the country is living in a state of tranquility, secure of their lives and properties against every attack whatever; I submit to you, whether is that man innocent who calls the people together, and impresses their minds with ideas hostile to the government of the country, with ideas of mal-administration on the part of the king, the parliament, and the administrators of public affairs, to impress their minds with an idea that all is corrupt, and that a reform is absolutely necessary, by annual parliaments and universal suffrage, a thing that never can be obtained by the consent of Parliament; and if you consider a moment, I am very sure that if the people were to obtain it, they would themselves feel the bad effects of it before a twelve month was over, and they would be glad to have the old constitution re-established; and therefore, if persons call such meetings of the people together, I submit to you, whether that is innocent, when the consequence is alienating their affections from the king and constitution, and from the government of the country, exciting them to rise up, and overturn the government by superior force?

Gentlemen, it is said, that the description of their meetings calling themselves citizens, dividing themselves into sections, making conventions of emergency, secret committees, and all the rest of it, are innocent things in themselves; and I don't think his majesty's Advocate has laid them as a crime unconnected with any other circumstance; but, gentlemen, the text is always best understood by the context; you are not to take this paragraph in the indictment by itself, but from the whole as laid and as proved you are to judge of the meaning and intention of the parties here; and when you find meetings established in this country under denominations never [Page] before known, as committees of emergency, of organization, of finance, and all the rest of it; when you see that assumed at a period when we are in an open declared war with France, when we ken that is borrowed from the convention of France, and when you compare it with the whole of their conduct, particularly the resolutions of that meeting and the speeches, I say you will consider, whether upon a fair construction of the whole, they were not imitating France in the form of their government, and that the object of their meeting was, like France, to overturn the established constitution, and put every thing upon the same footing with France, where aristocracy is reviled, the king reviled, and indeed where there is no constitution at all. That, gentlemen, is the great object of your enquiry; and when you attend to the whole of the resolutions and motions, as they appear upon the face of the minutes which were recovered out of the hands of their own secretary, and compare them with the papers found in the possession of Margarot, Sinclair, and Gerrald, and also, with the parole evidence that has been given in this case, you will judge whether upon the whole it does not appear to you, that these people were imitating the French Convention, and that they meant to follow the spirit of the French, in establishing their form of government.

Gentlemen, there are a number of seditious resolutions and speeches in this indictment, and one of them a very capital one, which I think borders as near upon high treason as any thing I ever saw: "That this convention, considering the calamitous consequences of any act of the legislature which may tend to deprive the whole, or any part of the people, of their undoubted right to meet, either by themselves or by delegation, to discuss any matter relative to their common interest, whether of a public or a private nature, and holding the same to be totally inconsistent with the first principles and safety of society, and also subversive of our known and acknowledged constitutional liberties, do hereby declare, before God and the world, that we shall follow the wholesome example of former times, by paying no regard to any act which shall militate against the constitution of our country; and shall continue to assemble, and consider of the best means by which we can accomplish a real Representation of the People and Annual Election, until compelled to desist by superior force." The language of this resolution is too plain to need any illustration—it is absurd to suppose that they meant to carry any thing by strength of arms; for what could such a small number do against the military force of this country—twenty one is the number to precede the action; but that is not the number of people to be engaged in this action, for they were only the delegates of the people; and it appears that these delegates, when they opened their secret letters, were to convene their constituents and repair to the place of meeting. I hope there were not many of them; but if they had been allowed to go on, I dare say, they would have been found [Page] to be the representatives of a great many more than I could wish for.

Now, Gentlemen, when you consider the whole of this resolution, and the speeches, and the sealed letter to be given to each delegate, the contents of which is not to be known, and when the very emergency has happened upon which they were to meet (for the landing of foreign troops is one of them), is it possible for you to believe that it was merely a reform in parliament that they intended? If it was, there was no occasion for any secrecy at all: but on the other hand, if a rising of the people was intended, then I conceive that a committee of secrecy, and a convention of emergency is necessary and prudent, and the idea of a reform in parliament is all nonsense; for if that was their intention, they would have made their application openly to parliament, and parliament would have granted or withheld their petition.

Gentlemen, it is very obervable that there is a blank in the minutes; now in order to supply that, there is a paper recovered from the possession of Charles Sinclair, "That in case the minister, or any other member of either House of Parliament, bring forward a motion for leave to bring in a Convention Bill, such as was passed in Ireland, to prevent the people from meeting according to their just rights by the Revolution, the same motion shall be notice to the delegates to meet in convention to assert their rights."

Gentlemen, it is said, that this paper is not authenticated, and to be sure, if you think it is not you will lay it out of your consideration: but in the first place, it was found in Mr. Sinclair's chamber, tied up in a handkerchief, and brought in a chaise along with Mr Gerrald and Mr. Margarot to the sheriff-clerk's office Mr. Mack generally had the keeping of the papers there; says he, I don't think I was there when the papers were brought in, but I came in very soon after; the examinations were going on, and it was put into my hand, the handkerchief was laid upon the sheriff-clerk's table, the sheriff was sitting there, and the clerks, the procurator-fiscal and so on. It it possible to suppose that these persons all men of character, would do that, in order to convict an innocent man, for which they ought to be hanged, by extracting evidence and putting false evidence in its place? Mack says, that he locked it up, and it was under his lock and key till it was opened and inventoried in presence of Sinclair himself, and other persons. This paper is marked at the back by Aitcheson, and Aitcheson told you, that he acted as assistant secretary, so that this paper is endorsed by Aitcheson in character of secretary to the convention, and afterwards found in Sinclair's possession, as he was the mover I think of the amendments upon Callander's motion. But, Gentlemen, that is not all, for here are two or three witnesses tell you precisely that it was debated in the convention, and resolved on, that in certain cases this convention of emergency were to meet, [Page] and one of those cases is, if any bill should be brought into parliament similar to that which passed in the parliament of Ireland, and this is confirmed by the evidence of more than one or two witnesses. Why, Gentlemen, this paper so well authenticated, found in the possession of Charles Sinclair, brought to the sheriff-clerk's office, committed to the care of the gentleman who is the usual keeper of the papers in that office, and kept under his lock and key till they were opened before Mr. Sinclair himself, I submit to you whether that is not very good evidence, that this paper (which is of the highest importance, and which borders upon high treason) is sufficiently authenticated to your satisfaction; and indeed gentlemen, there is a great deal more than that, because there is even Mr. Gerrald's first speech, which is at such great length in the indictment, of which Cockburn swears that he recollects that a number of paragraphs in it were delivered in the meeting, and he does not pretend to say that there is any thing materially different in the paper from what he heard in the meeting; though he will not identify the whole of it, he did not see any thing remarkably erroneous in it; that is, he could not say it was verbatim the same, but in point of substance he could not discover any difference. Then, Gentlemen, there is William Ross, a member of the convention, who writes the short hand, he swears he took this speech down in short-hand, and from that published it in the Gazetteer, and the public prosecutor copied it from the Gazetteer: this is pretty good evidence to shew that that speech was delivered in that meeting. This is the speech, "I rise to congratulate the convention," &c. (reads from the indictment.)

Now, gentlemen, in the first place, this is published in the Gazetteer, and taken by the public prosecutor verbatim from the Gazetteer, and is confirmed by the parole evidence, as also by the minutes of the convention, where you will find the substance of it; and I submit to you whether there is not sufficient matter to establish this meeting to be a seditious meeting; and if you are satisfied that it is a seditious meeting, the next question is, whether this pannel is guilty, actor, or art and part in the proceedings of such meeting.

Gentlemen, the concluding of the libel is, that if he is found guilty, actor, or art and part of the crimes charged, that is sufficient to inse [...] the pains of law; and the law is, that if any unlawful act is committed where a number are concerned, one person may be more active in the commission of the fact than others, but in the eye of the law they are all considered as guilty, art and part in the crime charged, and all liable to suffer the pains of law.

Gentlemen, I have anticipated a good deal of the evidence upon this head already. When you see Mr. Gerrald taking a very active, part and making speeches, such as you have heard to day, I look upon him as a very dangerous member of society, for I dare say he has eloquence enough to persuade the people to rise in arms.

Mr. Gerrald. Oh my lord!—My lord, this is a very improper [Page] way of addressing a jury, it is descending to personal abuse. God forbid that my eloquence should be ever made use of for such a purpose.

Lord Justice Clerk. Mr. Gerrald, I don't say that you did so, but that you had abilities to do it.

Gentlemen, he has no relation, nor the least property in the country, but he comes here to disturb the peace of the country, as a delegate from a society in England to raise sedition in this country: I say, he appears to me, to be much more criminal than Muir, or Palmer, or Skirving, because they were all natives of this country.

Gentlemen, if you are satisfied that this meeting is a seditious meeting, I don't see how it is possible to avoid the consequence of finding this pannel, guilty art and part of the crime charged: but, Gentlemen, it is not my verdict that is to be returned, you will return such a verdict as your own consciences will direct.

Friday, March 14, 1794.—Eleven o'clock.

The Court having met pursuant to adjournment, and the names of the jury having been called over, they brought in the following

VERDICT.

EDINBURGH, March 14, 1794.

The above assize having been inclosed, made choice of the said William Forbes to be their Chancellor, and the said Peter Hill to be their Clerk, and having considered the criminal libel, raised and pursued at the instance of his Majesty's Advocate for his Majesty's interest, against Joseph Gerrald pannel, the interlocutor of relevancy pronounced thereupon by the court, and the evidence adduced in proof of the libel, they all in one voice find the pannel Joseph Gerrald GUILTY of the crimes libelled; in witness whereof, their said chancellor and clerk have subscribed these presents, in their names, and by their appointment, place and date as above.

Signed WILLIAM FORBES, Chancellor. PETER HILL, Clerk.

Lord Justice Clerk. Gentlemen, I am perfectly satisfied that you have given that attention to this case which it deserved; and now you are at liberty to go about your business.

Mr. Gerrald, now is your time to speak, if you have any thing to say.

Mr. Gillies. My lords, I have an objection to state to this verdict. I need scarcely say that I mean no reflection upon the gentlemen of the jury who have delivered in the verdict, and who, I have no doubt meant to discharge their duty conscientiously, to the best of their knowledge. I state this objection with the more confidence, that it is not so much an objection to the words or to the form, as to the substance of the verdict. It is essentially necessary by the laws of this, and every other country, that the jury should consider the whole [Page] evidence before them; and so much is this the case, that even if they do consider it, yet if the verdict does not expressly bear that they did so, your lordship knows better than I do that such a verdict is void. This verdict bears that the jury have ‘considered the criminal libel raised and pursued by his majesty's Advocate, for his majesty's interest, against Joseph Gerrald, pannel, the interlocutor of relevancy pronounced thereupon by the Court, and the evidence adduced in proof of the libel.’

My lord, they ought also to have considered the defence which was stated, and the evidence adduced or referred to, on the part of the pannel; and they not only ought to have considered these in fact, but their verdict ought to have stated, that they did consider this evidence, and that they did take into consideration this defence.

But, my lords, this is not all. In a common case I know well, that, if a verdict is returned to your lordships, stating that the jury have considered the evidence before them, no proof can be received that they have not considered that evidence. It must be taken for granted that the jury have considered it, as the verdict states that they have done so. The evidence of the verdict itself cannot in the common case be re-argued, because I cannot be permitted to lead a proof of what passed among the jury after they were inclosed. No such proof can be received, in opposition to what the verdict itself bears. But what is the case here? There was here a most voluminous body of written evidence laid upon this table: these writings, it was admitted by the candour of the public prosecutor, might, and I will be bold to say, did contain much evidence in favour of the unfortunate gentleman at your lordships bar. This written evidence consisted of several hundred pages, which could not have been read in less than six or seven hours. I must say therefore, in point of fact, that the jury neither did, nor could consider the great body of written evidence that was laid before them. If I saw man in this room last night, and if I see him here again this morning, I cannot believe that he has been at Botany Bay in the interim; in the same manner, if a jury inclose for twenty minutes, and afterwards return and say they have considered the body of written evidence, which it must have taken several hours to consider, I cannot believe them: we know that the fact must be otherwise; and the proof which I offer is complete, that the jury were only inclosed for twenty minutes, a space of time in which it was not possible for them to have read the evidence which was laid before them, and which it was their duty to consider. It was the more necessary for the jury to have considered this body of written evidence, because the pannel did not take the advantage of a counsel to state his defence; and, however great his talents may be, he is not, he cannot be possessed of that legal knowledge and of those professional habits necessary to enable any man to comment upon evidence. It was still the more necessary for them to consider this written evidence, as the public prosecutor admitted before them, that it might contain a great deal of exculpatory proof, [Page] upon considering which, I am entitled to conclude, that the jury would either have found this gentleman not guilty, or have returned a special verdict, finding part of the crime libelled on proved, and part not proved. I need not enlarge upon what I have now stated. The jury were bound by every principle of justice, by every rule of law to consider this evidence; and I offer to prove, that they did not consider it, that they were inclosed only twenty minutes, a space of time in which it was impossible for any human being to consider it.

Mr. Solicitor General. My lords, I shall trouble you with a very few words in answer to the objections stated by my brother. The first is, that the verdict does not specially bear that the jury had considered the evidence on the part of the pannel. It is a pretty good answer to that, that there was no evidence adduced on the part of the pannel; the only evidence that was adduced, was on the part of the prosecutor, upon which evidence the pannel was willing his defence should rest. The next objection is, that the verdict bears that they have considered the evidence adduced in proof of the libel, when it was impossible they could have done so, from the time that they were inclosed. My lord, it was perfectly unnecessary that they should consider every word of this voluminous body of evidence. The evidence which I founded upon on the part of the prosecution could be considered in five minutes, as well as in five years. And as to the pannel, I do not remember that he founded upon any one part of it; and if he did, I am sure the jury had a perfect opportunity of consideration.

Mr. Clerk. My lords, I shall trouble your lordships with but few words, and before I begin, I must take the liberty of making the same profession that Mr. Gillies did, that I have no doubt but this jury meant to discharge their duty most conscientiously and most faithfully; but a jury of the most honest as well as faithful men may be mistaken in the discharge of that duty.

My lords, I must in the first place speak with respect to what Mr. Solicitor General said, that there was no evidence adduced on the part of the pannel. It is true there was not; but he made a defence, and a very long and able defence it was, and there is nothing in that verdict which shews that the jury have taken that evidence into consideration.

With regard to the next point, it is very true that the most material parts of that evidence might have been comprehended in a very small compass; but how was this matter to be determined? It could only be determined by reading over the whole of the evidence; and the more so, because the greater part of that evidence was incompetent to be produced, and ought not to have been produced, inasmuch as they referred to a period long before the pannel had any connection with the convention. My lords, the public prosecutor himself said it might comprehend a great deal of exculpatory matter —after that concession was it not their duty to read through that evidence in order to discover that exculpatory matter? My lords [Page] it is said that he did not found upon these papers: it is true he did not; but he made a defence of three hours and a half, in which he exhausted himself upon other subjects, leaving it to the jury, trusting that they would supply the defects of his evidence, and that they would consider the written evidence lying before them.

Lord Justice Clerk. What do your lordships say to this?

Lord Henderland. My lord, the jury in returning their verdict were not bound to say any thing farther than that upon considering the evidence they found so and so. With respect to the pannel's defence, he was fully heard, and it is impossible to suppose it was not considered. With respect to the evidence that was lying upon the table, they have formed an opinion, a constitutional opinion, which they were entitled to form, and we are bound to presume that it was partly formed upon that evidence.

Lord Eskgrove. My lord, I think, that with respect to this verdict, the jury have returned a very proper verdict; for my lord, it is neither necessary nor customary to say, that they considered the arguments used, either on one side or the other—if they had said that they had considered what the pannel had said at the bar they must also have stated that they had considered what his majesty's Solicitor General had stated in support of the charge. They are supposed to have considered both, but it is not customary to state more than they have here stated; you must believe that the jury considered every thing proved and every thing stated on both sides. As to what time they took I know not, nor is it my duty to enquire; they would take as much time as they thought proper; they have declared that they did so; and I am of opinion that there is no relevancy in the objection.

Lord Swinton. My lord, the jury have stated in this verdict, that they considered all that was laid before them, the libel, the interlocutor of relevancy, and the evidence. It is not usual for them to say that they have considered the arguments. As to the time that they took to consider we have no right to enquire: they could look at the material parts of the evidence in a very few minutes; and whether they looked at it or not we have no business to enquire, if it was on their memory it was sufficient. I am convinced that they have acted honestly and faithfully, as they were bound by their religion and their oath to do.

Lord Dunsinnan. My lord, an intelligent and respectable jury have, upon their great oath, returned a verdict bearing to proceed upon the evidence, and the only evidence that was laid before them, which was the evidence in support of the prosecution: every body present knows that there was none offered on the part of the pannel, and they could not consider evidence which was not laid before them. As to what fell from the pannel, they have no doubt considered it; and they have returned a verdict which appears to me a very proper one.

Lord Abercrombie. I am of the same opinion.

[Page] Lord Justice Clerk. My lords, I should have been very much surprised if this pannel should be acquitted upon a blunder in a verdict; but the verdict appears to me to be most unexceptionable, and the objection is founded in a misapprehension of the case altogether: the pannel and his counsel declared they had not any proof; if they had any proof by parole evidence, it was their duty to have brought it forward, and if they had meant to have founded upon the written evidence on the table, they ought to have pointed out what parts of that evidence they meant to found upon; and therefore you must consider that he had no evidence to bring in exculpation, and all that the jury had to consider, was the evidence on the part of the prosecution. The public prosecutor libels upon a bundle of papers, and because two or three hundred pages of writing are produced and all, ten lines of that is necessary to found upon in support of the charge, can it be necessary that the jury should go through it all? In cases of forgery it may be necessary to produce very long writings, and perhaps only two or three lines of it may be founded upon for the support of the charge; but can it be supposed that it is necessary for the jury to read over the whole of it? The thing is too gross to be listened to by any court whatever. The jury considered all that it was necessary for them to consider; they considered the libel, the interlocutor of relevancy, and the proof on the part of the prosecutor. Then they say there was a long defence, and they should have stated that they had considered that,—My lords, the jury did their duty in not considering that defence: it was a defence against the relevancy of the indictment, and the first two hours of this speech went to shew that all that he had done was innocent. But, my lords, was it not offered to the Court in a very long pleading and found relevant? I apprehend the jury have done their duty properly: they have a power to be sure, if they think proper, even after the libel is found relevant, they may acquit, but the duty of a jury and of a judge are distinct; it is the business of the Court to determine the law as to the relevancy of the libel, and of the jury to judge of the fact; and as it was found relevant by the Court, the jury had no more to do but to consider the evidence, and in my opinion, they have returned a very proper verdict, finding the pannel guilty.

Mr. Gerrald, if you have any thing to say, now is the time.

Mr. Gerrald. My lord, I have very little to say. I am as little hurt, as I am surprised at the verdict returned, inasmuch as I find that the public prosecutor himself, in the House of Commons, anticipated the fate which I was to meet; but my lord, I trust that a moral and enlightened world, collectively, will do justice to the purity of the motives which have actuated my conduct; and I glory in being the advocate of a cause, [...] which is complicated truth, justice and freedom, which I know must and will ultimately triumph.

Lord Justice Clerk. Your lordships will now proceed to give your [Page] opinions upon the punishment which you think in this case ought to be inflicted.

Lord Henderland. My lord, the pannel at the bar is found guilty of the crime libelled, which is sedition. And my lord, after the very able argument and sound constitutional law which you heard from the Solicitor General, it would be highly improper in me, as it would be irksome to your lordships that I should enlarge upon the nature of this charge.

My lord, we are to consider of the punishment due to that crime, of which we have had so many miserable examples before us, that I can propose nothing else but this, that the prisoner shall be recommitted to prison, and there to remain till an opportunity shall offer for carrying the sentence that I propose shall be pronounced against him of banish [...]nt by transportation, for the space of fourteen years, into execution.

My lord, it appears to me, that by no means an adequate punishment can be inflicted for this offence; and even if this has the appearance of severity, which I cannot think it has, it is the only judgment that could be pronounced in such a case, to secure the safety of this country from the commission of such crimes. I am convinced that the people of this country, who are an intelligent, an acute, and a sensible people, however much they may be led away by seditions persons, when they come to res [...]t coolly, dispassionately, and fairly, upon the nature of this crime, upon the danger that arises from the commission of it, and upon the security and the safety they enjoy, by the exercise of that discretionary power, which is vested in this Court by law, will be of opinion that the judgment we pronounce this day is a just and a proper one.

Lord Eskgrove. My lord, I am extremely happy, that this gentleman has had a full and a fair trial, and that he has acted with the propriety of calling in the assistance of able counsel, who have done hohour to themselves, and justice to their client; and my lord, I understand (for my state of health did not permit me to remain in Court the whole of the time) that the gentleman himself is a man of great abilities, and that he was indulged by the Court, in stating every thing that he wished to state. My lord, I apprehend, that after the arguments we have heard, there can be no doubt that this Court, by the law of this country, whatever it may be in other countries, are authorised to inflict the punishment of banishment by transportation, and that this is the only proper punishment that can be inflicted for the crime here charged, to prevent others from committing the same crime, and to keep peace and tranquility within this part of the kingdom. And, my lord, in consequence of what your lordships have uniformly pronounced upon cases of this kind (which I am heartily sorry there has been occasion for). I cannot see any thing in this case that could authorise me to deviate from the same [Page] mode of punishment that your lordships have inflicted in the other cases.

My lord, as to this verdict of the jury, by which he is found guilty, taking under consideration all the circumstances, I am of the same opinion that has been given by my honourable brethren.

Lord Swinton. My lord, in considering this crime about which your lordships have heard so much, the more I consider, and the more I turn my mind to it, the more I am convinced that this Court did right originally in imposing the sentence that they did impose. My lord, in considering this case, and comparing the punishment with the crime, I hardly know what punishment is adequate to it. It was well said by one of the ablest and greatest men that ever lived, that sedition was like Pandora's box, it contains every evil, it contains, every vice. My lord, it is said, that he is to be sent among pickpockets, thieves and robbers, but my lord, this crime is not to be compared with theirs, it comprehends every sort of crime, murder, robbery, rape, every thing that is criminal. I think, my lord, the punishment has been proposed is the mildest that can be inflicted, and I hope will be sufficient to deter others from committing the same crime.

Lord Dunsinnan. My lord, the crime of which this unhappy man now stands convicted, is a crime for which, within a few months, two persons have been tried at that bar. who have been convicted, and upon those convictions, the court have pronounced the judgment of the law. My lord it would give me great pleasure if there were any circumstances in the case of this pannel that could distinguish it favourably from those upon which we have had occasion to pronounce judgment before; but the circumstances of this case tend rather to aggravate it. My lord, he is one of those persons who came into this country, for the purpose of exciting civil discord, by inflaming the minds of the people. We have had an opportunity of seeing that he possesses talents, which render him exceedingly capable of mischief; the harangue which we heard last night though addressed to the jury, was I believe rather intended for another part of this court; we saw that his political principles are extremely dangerous, and my lord, if there is any other country, which does not inflict such a punishment for such a crime, I am happy that I live in such a country as this; and if I were to propose any difference of punishment, it would be rather to increase than diminish it. I am of opinion, doubtless, that the same punishment should be inflicted in this case as in the former.

Lord Abercrombie. My lord, a legal objection was stated to the punishment now proposed; that objection was argued with uncommon ability, by the learned counsel for the pannel, and your lordships gave your judgment upon it. But, my lords, that legal objecti [...] was grounded upon this, that the punishment was too severe [Page] for the offence of which he stands convicted by the unanimous voice of his country.

My lords, it has been said, within these walls, that his intentions all along were innocent, that they were perfectly pure and honourable; and that had the same crime been committed in England, it would either have passed with impurity, or with a very small punishment as imprisonment of pillory. My lord, upon that I shall say a very few words. With respect to the pannel's motives, I shall for a ment suppose that his intentions were pure and perfectly innocent; but even considering the case in that view, I must give it as my opinion, sitting here as a judge▪ that it would afford no motive for a mitigation of punishment. My lord, we all know it is a fact, undoubtedly undeniable that a mistaken principle, either in religion or in politics, has often led the way with the best of intentions, to commit crimes of the deepest atrocity. My lord, the history of this country affords many instances and many examples of this kind; for example, in the case of the powder plot many of the conspirators were men of character, Sir Everard Digby was one of the most accomplished, one of the most virtuous men in England, and my lord he was sentenced to die as a traitor for the part he took in that plot; and on the eve of his execution he wrote a letter to his wife, in which he expresses himself in those precise terms: ‘Now for my intention, let me tell you that if I had thought there had been the least in the plot, I would not have been of it for all the world; and no other cause drew me to hazard my fortune and life bat zeal to God's religion.’

My lord, this letter, written at that fatal period, by a man who was beloved by every person in Europe, leaves no room to doubt of the sincerity of this confession. Then my lords, as to this man, who lives at the distance of two centuries from the commission of that crime, will any person who now hears me say that the innocency of his intention or the purity of his motives ought to be urged as a reason against executing that sentence?

My lord, I shall just take the liberty of stating, though I am sorry to give any opinion upon such a point, upon the most cool and deliberate observations, were I called to give my opinion upon the point, I would say, that if this conspiracy, in which the unhappy man at the bar was an active leader, had been carried into effect; if that conspiracy had been followed with entire success, there is not a corner of this kingdom in which a degree of misery and wretchedness must not have followed.

My lord, we have the example of our own times also; I need not remind your lordships of 1745 and 1715. when many men, who had acted with the best intention, died the death of traitors.

My lord, I say although the pannel could have established by the clearest and the most satisfactory evidence, that his intentions were, all along perfectly innocent, and his motives perfectly pure, it would have afforded no ground whatever for mitigation of punishment; [Page] but I am sorry to say that I can discover no proof of such innocence of intention. My lord, we in this world can only judge of the intentions of men from their actions; and viewing the actions of this pannel, no man of the least observation can lay his hand upon his heart and say, that the evidence affords the smallest proof of such purity of motive.

My lord, with regard to the other point, it is our province and our duty to judge of this and every other case by the law of our country; we have nothing to do with the law of any other country, and I cannot think that the law of England would suffer an offence of this magnitude either to pass with impunity, or be punished with a slighter punishment; and I heartily concur with the rest of your lordships in the punishment that your lordships have proposed.

Lord Justice Clerk. My lords, in comparing this case with the others I cannot find any thing that can possibly make it less criminal. My lord, transportation is, no doubt, a very severe punishment; we consider it as the highest arbitrary punishment that the laws of this country can inflict; but I think it is no more than adequate to the offence which has been proved against this pannel, and of which he has been convicted by the verdict of a very respectable jury. My lords, I feel for the distresses of convicts as much as any man who hears me: but, my lords, the happiness of the innocent part of mankind requires of us to punish the guilty and protect the innocent; and we cannot give that protection to the innocent part of society unless we inflict adequate punishments upon crimes committed against society.

My lords, in all these cases, I was very sensible that transportation was a great punishment; but, after considering all the different punishments that the laws of this country can inflict, I did not see any one punishment we could inflict which could answer the purpose of checking this evil, unless it was by inflicting the punishment of transportation alone; any other punishment would have been a very imperfect one. Simple banishment from this country is not at all proper; long imprisonment is a thing not known in this country, and very hurtful to the country as well, because we know a seditious person in prison may do a great deal of harm. I cannot have the least hesitation in thinking that the punishment of transportation for fourteen years is the least that we can inflict in this case.

My lords, we have heard a great deal of the innocence of his intentions; but it was justly observed by my brother who spoke immediately before me, that taking his own account of the matter to be just, supposing that he has acted from principle, and that his motives are pure, I do say that he becomes a more dangerous member of society than if his conduct was really criminal, and acting from criminal motives. A man acting from criminal motives [Page] is not so dangerous a member of society as a man who thinks he is acting from principle; for when a man is so misguided in his principles he overturn [...] society and government itself. I say solus populi suprema lex, and it becomes us, let his intention be as pure as they possibly can be, to remove that man from society, and put it out of his power to disseminate these dangerous principles. I don't know whether his principles are so pure as he professed or not, but if they are, I think it justifies this punishment just as much as if he had acted from the worst of motives, and therefore any other punishment would be insufficient.

The Clerk of the Court then read the following SENTENCE:

The Lord Justice Clerk and lords Commissioners of Justiciary having considered the foregoing verdict, whereby the assize all in one voice find the pannel GUILTY of the crimes libelled: the said lords, in respect to the said verdict, in terms of an act passed in the 25th year of his present majesty, entitled, ‘An Act for the more effectual transportation of felons and other offenders, in that part of Great Britain called Scotland,’ ordain and adjudge that the said Joseph Gerrald be transported beyond seas to such a place as his majesty with advice of his privy council shall declare and appoint, and that for the space of Fourteen Years from this date, with certification to him if after being so transported he shall return to and be found at large within any part of Great Britain, during the said fourteen Years, without some lawful cause, and be thereby lawfully convicted, he shall suffer death, as in cases of felony, without benefit of clergy, by the law of England: and ordains the said Joseph Gerrald to be carried back to the Tolbooth of Edinburgh, therein to be detained till he is delivered over for being so transported; for which this shall be, to all concerned, a sufficient warrant.

(Signed) ROBERT M'QUEEN.

LIST OF EXCULPATORY WITNESSES.

Right Hon. Robert M'Queen, Lord Justice Clerk.

Sir Philip Ainslie, Bart.

Miss Charlotte Ainslie, daughter to Sir Philip.

Mrs. Watson, alias Rochead, widow of—Rochead, Esq of Inverleith.

Mrs. Christian Dundas, sister to the Secretary of State.

Miss Dundas, niece to do.

Charles Hay, Esq Advocate.

—Davidson, Clerk to Charles Hay, Esq

[Page]

Witnesses to prove the charge in the declinature against Lord Justice Clerk.

Dr. Yule.

George Sinclair, son to the late Robert Mansou Sinclair, of Bidge End.

To disprove the papers alledged to have been taken from Charles Sinclair; and to prove that the Messenger, Lyon. had refused to show the warrant, although Sinclair had frequently desired it, alledging he had orders from the Sheriff and Procurator Fiscal, not to show it.

John Pringle, Esq late Sheriff of the County of Edinburg.

Harry Davidson, Esq Sheriff-substitute.

To prove that they had delivered a paper to Gerrald, out of Charles Sinclair's papers, which be (Gerrald) claimed as his own, prior to Charles Sinclair's extra-judicial examination.

George Ross, Clerk, Gazetteer-Office.

To prove that Gerrald was a member of the same Section with himself, and never once attended a meeting of such Section.

Notes

*

A list of the exculpatory witnesses who were cited, will be given at the end of the trial.

↵

*

See Appendix, No. 2.

↵

*

See Lord Stafford's Speech in the State Trials.

↵

APPENDIX

[Page]

No. I.

THE case of Bailie was quoted on the same day, by the Lord Advocate in the House of Commons, and the Solicitor General, in the Court of Justiciary. The sentence of the privy-council was appealed to as decisive, but the case itself was brought forward by surprise, and has never been fairly stated to the public. Bailie had informed the Duke of Hamilton by letter, that the Duke of Queensberry and the Marquis of Annandale (the former Secretary of State, and the latter President of the Council) had tampered with him privately, to induce him, by promises of preferment, to accuse the Duke of Hamilton and other noblemen, of a correspondence with the French Court, and of a conspiracy to establish the Pretender on the Throne. The Duke of Hamilton communicated the letter to the Justice Clerk, by whom it was divulged to the privy-council, and on the complaint of the Duke of Queensberry and Marquis of Annandale, Bailie was convicted for defamation and leasing-making. The sentence of the privy-council, as extracted from its records, is in the following terms:

‘Parties and their advocates being heard at the bar and removed, the lords of his majesty's privy-council have repelled, and hereby repel the dilators proponed by the defenders procurators as said is, and have found and hereby find the within libel relevant to infer an arbitrary punishment, and proven by the defender's judicial acknowledgment at the bar, that the two letters libelled on were all his hand-writt and subseryved by him, and therefore have declared and hereby declare the said David Bailie to he infamous; and have banished and and hereby banish him furth of the kingdom for-ever; and have also appointed and hereby appoint and ordain the said David Bailie to be transported to the West-Indies, and to be in prison ay and while he be transported, and have appointed and ordained and hereby appoint and ordain the said David Bailie, before he be transported, to be set on the pillory at the Trone, and there to stand from eleven to twelve o'clock of the forenoon, and that upon such a day and in such a manner as the said lords of her majesty's privy-council shall think fit; and the said David Bailie being called in did hear the sentence publicly intimated to him accordingly.’

[Page]To those acquainted with the history of the period, it will appear extremely probable, that Bailie was sacrificed to the political friendship of two powerful families. Queensberry had been baffled and defeated in the preceding parliament, where he presided as Commissioner, and in which the act of settlement was ignominiously rejected. To remove and discredit the heads of the country party, he had actually recourse to a fictitious plot, and employed Fraser of Beaufort, afterwards Lord Lovat, to accuse them of a correspondence with the Court of St. Germains. (Macpherson's Hist. Vol, ii. p. 284.) Whether we suppose that Bailie had been tampered with for the same purpose, or with Lockhart (Memoirs p. 76.) that he was employed by his kinsman Bailie of Jerviswood to counteract and discredit the Duke of Queensberry's plots, this at least is certain, that his sentence was carried in council by Queensberry's party, in opposition to the Marquis of Tweedale's, and that the whole was a political contest and decision too infamous to constitute a precedent in a court of justice. See Lockhart.

But their sentence was never carried into complete execution. Lord Fountainhall, who reports the case, observes, ‘David conceiving himself injured; for if he had concealed it, then he might have been overtaken for misprision and not revealing; and now, having discovered it, he is condemned as a defamer and calumniator, which makes his case hard; he resolved to apply to the parliament for reviewing and reconsidering the council's sentence as iniquitous. And, finding, that by the second act of parliament, 2795, citations during the recess and intervals of parliament are to be issued out by a warrant from the lords of session, he had prepared a bill to be given in to the lords, for ordering a reduction to be raised, under their signet, of the council's sentence, for citing the Duke of Queensberry, &c. to appear before the parliament, when it shall meet; but when his lawyers came to consider the clause, they thought it imported a previous cognition and trial before the summons could be granted, by which the lords were summarily to hear and cognosce if there was ground for issuing out the summons demanded; and in regard the session was now rising, and there was no time for taking such a previous cognition, therefore the giving in of the bill was forborn.’ Fountainhall, Vol. ii. p. 228.

The appeal, as Fountainhall afterwards observes, was then relinquished, as it would not stop the execution of the sentence. Whether it was afterwards lodged is uncertain; but in the succeeding parliament Queensberry, when dismissed from office, joined his strength with the country party, on the express condition that no enquiry should be made into the pretended Scotch plot. (Macpherson, 304.) To liberate Baillie, who, according to Lockhart, had undergone the pillory, an act was passed on his petition to parliament, suppressing any notice of his offence, or his sentence, but ordaining him to be released from prison on procuring bail for 1000 merks Scotts, to appear, [Page] when called, in the High Court of Parliament. Unprinted Acts of Parl. 1704. The execution of the sentence was therefore suspended, and he was released in consequence of a compromise with those who pronounced or obtained the sentence, and who were conscious that its excessive severity, not to say its illegality, would not bear the test of a parliamentary examination. He for whose liberation parliament thus interposed by statute, must have either been reputed innocent, or the victim of a sentence that exceeded the legal measure of punishment.

The act itself is as follows:

21 July, 1704.

Her majesty's High Court and the Estates of Parliament having heard the petition of David Bailie, prisoner in the Castle of Stirling, humbly sheweth unto them, That whereas the petitioner has been a long time in prison in the Castle of Stirling and other places, and that it is extremely prejudicial to his health to continue any longer in prison, he being reduced to that weakness and ill state of health, that he is scarce able to walk: and therefore humbly praying, that his grace and the estates of parliament would ordain him to be set at liberty, he always enacting himself to appear when called, as the said petition bears; which being considered by her majesty's court and the estates foresaid, they, by their interlocutor thereon ordained the petitioner to be set at liberty, he finding caution, when called to appear before the parliament. In the terms of which interlocutor, and conform to the 6th act of the 9th session of King William's parliament, William Lord Forrester did before extracting hereof become bound as cautioner and surety for the said David Bailie, petitioner that he should, when called, appear before the said High Court of Parliament, and that under the penalty of 1000 merks Scots money. In respect whereof her majesty's High Commissioner and the said Estates do ordain him, the said David Bailie, to be set at liberty in manner foresaid.

[Page]

No. II. Joseph Gerrald's Prayer, on the forcibly breaking up of the Convention in Scotland.

O THOU Governor of the universe! we rejoice that all times, and in all circumstances, we have liberty to approach THY throne; and that we are assured that no sacrifice is more acceptable to Thee, than that which is made for the relief of the oppressed. In this moment of trial and persecution, we pray that thou wouldest be our defender, our counsellor, and our guide. O be thou a pillar of fire to us, as thou wast to our fathers of old, to enlighten and direct us; and to our enemies a pillar of cloud, of darkness, and confusion.

Thou art thyself the great patron of liberty. Thy service is perfect freedom. Prosper, we beseech thee, every endeavour which we make to promote thy cause; for we consider the cause of truth, or every cause which tends to promote the happiness of thy creatures, as thy cause.

O thou merciful Father of mankind, enable us, for thy name's sake, to endure persecution with fortitude; and may we believe that all trials and tribulations of life which we endure, shall work together for good to them that love Thee; and grant, that the greater the evil, and the longer it may be continued, the greater good in thy holy and adorable providence, may be produced therefrom— And this we beg, not for own merits, but through the merits of him who is hereafter to judge the world in righteousness and mercy.

THE END.

§

§

[Page]

OMNE SOLUM FORTI PATRIA.

[figure]

JOSEPH GERRALD.

Delegate to the British Convention.

Information about this book

Title statement

The trial of Joseph Gerrald, delegate from the London Corresponding Society, to the British Convention. Before the High Court of Justiciary at Edinburgh, on the 3d, 10th, 13th, and 14th of March, 1794. For sedition. / Taken in short-hand by Mr. Ramsey.

Gerrald, Joseph, 1763-1796.

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI :

Date

2009-04.

ID [DLPS]

N21009

ID [TCP]

N21009

ID [STC]

Evans 27591

ID [NOTIS]

APY1310

ID [IMAGE-SET]

27591

ID [EVANS-CITATION]

99028378

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Series

Early American Imprints, 1639-1800 ; no. 27591.

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(Evans-TCP ; no. N21009)

Transcribed from: (Readex Archive of Americana ; Early American Imprints, series I ; image set 27591)

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Source

— The trial of Joseph Gerrald, delegate from the London Corresponding Society, to the British Convention. Before the High Court of Justiciary at Edinburgh, on the 3d, 10th, 13th, and 14th of March, 1794. For sedition. / Taken in short-hand by Mr. Ramsey., Gerrald, Joseph, 1763-1796., Ramsey, William, fl. 1793., Tanner, Benjamin, 1775-1848, engraver., Scotland. High Court of Justiciary., London Corresponding Society..

Extent

207, [1] p. : 1 port. ; 22 cm. (8vo)

Printed and sold by Samuel Campbell, no. 124, Pearl-Street.,. New-York: :: 1794.. (Frontispiece portrait engraved by Benjamin Tanner.)

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