land, and had warranted the conclufion of the court of justiciary and circuit courts on the prefent trials. That great lawyer had considered fedition as a common law offence. Indeed fedition was a crime well known to the law of Scotland. As to the objection taken to the jury. men, it arofe in this manner: the pannel objected to them, because they were members of the Goldfiniths Hall affociation. Some of them were fo, they had united for the defence of the conftitution. If that was to be allowed as a difqualincation, they would object to the first characters in the country. They might as well fay, they would not be tried by any friend to the conftitution, or by any but thole who thought as they did. This muit be the cafe if this objection was aldowed, for if we fearched the whole country over, there would be found but two claffes of perions--those who wished to fupport the constitution, and thofe who wished to destroy it, and to introduce all the confusion and the anarchy of France. He then took notice of the cafe as it refpected the witnefs Ruffel, to whom the ufual questions were put before his competence was allowed by the court, and maintained that the anfwers he gave amounted to prevarication, according to the diftinctions of the law of Scotland, and therefore he was committed. He maintained alfo, that the pannel loft nothing for want of the teltimony of this witness, for that he only came to prove, what twelve other witnesses had fworn on the part of the defendant,-that he frequently defired the populace to behave peaceably, and fo on. As to the foundnefs of the difcretion of the court of justiciary, he found himself bound to defend it under all the circumftances with which it was attended. Upon this fubject he entered at length, and obferved that he had heard much of the fuperiority of the law of England over the law of Scotland; but for his part, he thought that in this particular cafe the law of Scotland was fuperior to the law of England, and much better adapted to fupprefs fedition. He maintained alfo, that tranfportation was the moft prudent difpofal that could be made of perfons who had been guilty of fuch atrocious offences; that the perfons convicted, if they had been fined, would have had their fines paid by others; as to imprisonment, they would have borne it with triumph, and would have fown the feeds of fedition mong poor, illiterate, and heedle's peo ple.-What might be the effect of the peo ple of England having among them iuch men as Skirving, Margarot, and Ge rald? Mr. Thompson called to order, and thought it highly improper to bring for ward the name of Mr. Gerald, who was not yet tried. The lord advocate made an apology, and then entered upon the general fubject of the trials, maintaining their legality and the foundness of the difcretion of the judges, who, he said, had done nothing more than the law commanded them to do. Mr. Sheridan took notice of all the arguments of the lord advocate, and maintained there was a fallacy in the whole tenour of his fpeech; for he confounded two things effentially distinct, that of leaning-making and fedition. All the cales he had brought forward applied to leaning-making only; and the question did not involve that confideration, but related merely to fedition, upon which not a single cafe was to be found. He ridiculed the affertion of lawyers from Scotland telling the house they were not qualified to judge on a point of common fenfe, arifing out of the hiftory of the country. He reprobated the obfervation of the lord advocate, that there was no middle class of people in Scotland, between those who wished to destroy the conftitution and introduce the horrors of anarchy, and those who applauded the proceedings of the court of justiciary. The affertion he believed to be as falfe, with regard to the people of Scotland, as he knew it to be fale of the great body of the people of England; he knew that in England there was a class between republicans and levellers, and affociators and alarmifts; men, much more honourable in their views than either; men upon whom the fafety of this king. dom might depend, and to whom every honeft man might look up with confidence; men who had too much spirit to crouch to power, and too much candour and in. tegrity to stoop to mean artifice, to gain the momentary applaufe of the unthinking part of the community. He expreffed his indignation at the idea of the noble lord preferring the criminal law of Scotland to that of England, and said that fuch affertions fhould never be fuffered to pafs unreprobated. He took notice of the conduct of the court with regard to the witnets Ruffel, offered on the part of Mr. Muir, and maintained that both the lord advocate and the court had acted illegally 1 with the fpeeches of the noble lord at these trials, for every fentence and almost every word feemed as if borrowed from that admired performance. He then took notice of the cafe of Bailey, and maintained that the privy-council exceeded their power to a fhameful degree in that cafe. He main ftrued the whole of the opinion of fir George Mackenzie on the subject of sedition; and he infifted that the question for the houfe was, whether they would agree to the motion, in order to clear a point that was at least extremely doubtful. He warned the houfe against the public danger of laying down a precedent which would go to the length of telling the people of this kingdom that the house of commons will never inftitute an inquiry into the conduct of justice upon any thing short of illegality. Mr. Whitbread the younger, after fpeaking in terms of the higeft refpect and affection of his father, informed the house that he had the honour to be acquainted with Mr. Palmer, to whom he paid the moft handfome compliments for underftanding and virtue. He then took notice of the fubject before the house, and declored he thought these severe sentences were dangerous to the public welfare and tranquillity of the realm. upon that fubject; that their conduct would not have been agreeable to any principle of law in any civilized fociety, for that the witnefs had faid only, that he did not recollect what no perfon in court could prove to be falfe. He applied many pointed obfervations on the refufal of the court of jufticiary to allow the obtained that the lord advocate had mifconjection of Mr. Muir to the jury, as having prejudiced his caufe in the affociation of the Goldfmiths Hall company. This, he faid, confounded two things effentially at variance with one another in the admi nistration of justice in every court where juftice could be known-that of the accufer being a judge, which was the cafe on the trial of Mr. Muir. He ridiculed the effect of the researches of the lord advocate, who had studied the law of Scotland for eighteen months, and had only brought forward a law which had flept for a century, which, when he brought it, turned out to be only a law upon leafing-making, whereas the fubject to which he applied it, was fedition. He obferved, that it was rather remarkable, that the learned lord could not find in the history of Scotland any law for fedition in the courfe of a century, although within that time it had produced two rebellions. It was extraordinary, that the noble lord fhould never have ftumbled on the cafe of a Mr. Dundas (he thought his name was) of Arniston, who was accufed of diftributing medals, which a wicked woman, called the duchefs of Gordon, had given to him on thefe medals were the head of the pretender, and fomething very feditious on the other fide-and of making fpeeches recommending the protecting of the pretender. It was extraordinary that this circumitance had escaped the historical vigilance of the learned lord. He took notice alfo of the charge laid against Mr. Muir for diftributing books, the works of others, and of the neceflity there was of transporting him for fourteen years for it, as a thing perfectly new, in that the noble lord had never heard of fuch a crime as of calling on the people to ask for a parliamentary reform. Perhaps the noble lord had never heard of fuch a thing as a refolution figned William Pitt, duke of Richmond, and others, calling on the people to do the very fame thing. (Here he read the refolution of the Thatchedhoule tavern, entered into by Mr. Pitt and his party in 1781) Perhaps the noble lord had not known any thing of the late publications of Mr. Burke against popular rights, which however agreed pretty well Mr. Windham defended the legality of the trials, on the precedents which appeared to hun to have been quoted. He was of opinion that the law of England might be altered and affimilated to the law of Scotland, if it was found adequate to the purposes of fuppreffing fedition. Mr. Fox faid, he confidered the question to be of a nature fo alarmingly important, that he could not fit filent after hearing the arguments that had been brought forward; and he could not help oblerving with indignation, the manner in which the learned lord expreffed a with that the law of Scotland, as he expounded it, fhould be introduced into England, inttead of thofe wife and falutary laws under which fo much had been fecured to this country; and when the karned lord roundly afferted, that the Scotch criminal law was preferable to the English law, and that he could wish to fee them the fame, he was itruck with the violence and boldness of such a doctrine. Were they extended to the full length that the learned lord, and a right honourable friend of his, feemed to with, he faw no fecurity that he, or any other perfon had, that they might not be fent to Botany Bay, as it 3 B placed placed them completely in the power of the executive government. His right honourable friend had gone far indeed, if, faid he, the laws were inadequate, they ought to be made adequate in this country. Now, whether he thought that they were adequate, or the contrary, he muft afk the right hon. gentleman, if he was ready to fay that the Scotch law was fo much better than the English law, that it ought to be adopted, as if the exifting laws were not adequate to any occurrence that might take place. In his opinion the laws in both countries were adequate, and under thefe, as they exifted, there was no fpecies of crime to which there was not a fuitable punishment. In the prefent cafe, he thought the Scotch judges had exercifed their discretion to a degree of impropriety that was not justifiable, or if it were juftifiable, by any law, it was full time, from the enormity of the cafe, that fuch law fhould be repealed, and the people of Scotland put upon the fame footing with thofe in England. He thought that houfe had fhewn a degree of falfe delicacy about calling for the record on this cafe, and reminded them of the petitions in the reign of Charles I, which, though fome of them came from people of exceptionable character, were properly attended to by parliament. With regard to the act of 1703, it certainly was a limiting act, and under the word banishment, never could mean transportation; and being a mitigating act, ought to be conftrued mildly: he then came to the act 1672, which fpecifies, when transportation is the meaning, that fome of thofe convicted under that law were to be transported to the Weft Indies, and in other cafes forth of the realm, which is no more than banishment from their country, without any direction where they are to be fent. He confidered the negative evidence given by his hon. friend who made the motion, as entitled to much weight, as nothing had been faid on the other fide: his hon. friend had proved that there was no one instance, except for capital crimes, of any perfon being tranfported, after fentence of banishment had paffed, and no inftance, of any trial for fedition in the hiftory of Scotland to be found. In one act, indeed, there were words which went farther on the fubject of punishments by banishment to places specified, and added, or otherwife; but certainly no man would fay, that this hould be acted upon by conftruing the law with a latitude from thofe words to the injury of the fubject: confidering therefore the principle of this law, and of all mitigating laws, he was clearly of opinion that the Scotch judges had either mifunderflood or misinterpreted the law. As to what happened in 1704, and which had been stated as a precedent, it was only neceffary to fay, that thofe proceedings were ruled by the privy-council, at the time the most reprobated of all the tribu nals that could poffibly be mentioned. Indeed, in this opinion he had the high authority of a great lawyer in the other houfe, who had faid from the woolfack last year, when the precedent of the appeal to the privy-council of 1704 was ftated, You must not mention that; you cannot argue from it; it is no precedent." They had fhewn their contempt for the law paffed only eight months before, but had in the most unwarrantable manner added to the vigour of the fentence by annexing to the punishment pillory, and being declared infamous, for which there was no fhadow of law. His hon. friend had fo far forgot himfelf as to talk of repeated inftances, though not one could be stated, nor was attempted to be stated by the learned lord, for the best reason in the world, because not one that passed in 1704 was to be confidered as a precedent of a court, but an act of privy-council, in contempt of the exifting law at that time. The learned lord had taken pains to explain what leafing-making was, but he had likewife been obliged to own that there were other crimes which had been punished as fedition, that did not precifely come within the defcription of telling falfehoods between the king and the people; fuch as the cafe of his ancestor and others in the reign of George I, fuch as drinking the pretender's health, refufing to ring the bells at Dundee on the king's acceffion, and others, which had not been followed up by transportation; and would any man compare the criminality of thofe cafes to the criminality of the prefent cafe, which was merely delivering opinions favourable to a parliamentary reform? He treated with irony the argument of the learned lord, that he was to much at a lofs to find out the proper way of punishing fedition in Scotland, that he was obliged to look into laws that had been dormant for a century; but if there was no fedition in Scotland for a century, was there none in England he could look to? That there fhould be none in Scotland was the more extraordinary, as within that century there had been two open rebellions. By the learned lord's argument, fedition fedition was a good thing, for they had it in England, and had no rebellion there, they had none in Scotland, and there were two rebellions. He treated fir George Mackenzie as the apologist of all the tyranny that difgraced the latter part of the reign of the Stuarts, and as fuch confidered it humiliating to quote as an authority; as far as it went, however, if would be found against the learned lord. He came next to difcufs the manner in which the evidence had been conducted at Mr. Muir's trial, of which, he faid, the bare statement must make the blood run cold of every one who heard it. He argued the impropriety of bringing forward Ann Fisher, Mr. Muir's domeftic fervant, to prove that he at fome time or other had abufed the proceedings of the courts of Scotland. If fuch unwarrantable proceedings were encouraged, where was the man who could fay his character, property, or life was in fafety? His right hon. friend and he, with many others, who were united in the fame fentiments against the American war, might have been fent long ago to Botany Bay; in fhort all were liable to be accufed of fedition who oppofed adminiftration at the time, and the whole country was at the difpofal of the executive government. The whole of the proceedings on this trial were difgufting to every lover of juftice and humanity. He faw a great fimilarity between the prefent proceedings and fome of the deteftable proceedings in France. As to the crime, the learned lord's fedition would there be termed incivifm; and as to the punishment, to a man of fenfibility there was little difference between Botany Bay and the guillotine. The learned lord having no ftatute law for fedition, had recourse to common law; but where can it be found there? The common law could only exist in three ways-on practice on authority or on the general reafoning of eternal justice; but none of thofe could answer the purpofe of the learned lord. He contended, that the court had been equally wrong in admitting improper evidence for the profecution, and refufing competent evidence for the defendant, alluding to Ruffel's. He laid it down to be the right of the jury to judge of the credibility, the court could only judge of the competency. He then entered into the question of challenging fuch of the jury as had affociated and offered a reward to convict Mr. Muir, as well as re. futing to admit him of their fociety. This challenge in England would have been ad mitted, and he knew no reason why it fhould not be fo in Scotland, because by their conduct they certainly had prejudged Mr. Muir. He was particularly fevere upon the manner in which feveral of the judges gave their opinions. If there were no law, or no example from their ancestors to direct them, might they not have looked for precedents in this country? Here he thought himfelf bound to pay a just tribute of praise to a learned gentleman oppofite (the attorney-general.) In his official capacity, he had to profecute to conviction: the fentence was fine and imprifonment; but in the execution of that fentence, the gentleman, Mr. Winterbotham, a minifter, who had been convicted of preaching two feditious fermons, found himself thrown into jail among felops who had been guilty of every fort of crime; but no fooner did this come to the attorney-general's knowledge, than he, with fentiments of honour, justice, and humanity, faid, God forbid that a perfon of the defcr ption mentioned fhould for a fingle day be confined in fuch fociety;' and he took fteps, in confequence, that would do him immortal honour The chancellor of the exchequer said, the grounds of difcuffionre fimple; and, in his opinion, an inquiry into the bufinefs would lead to the conclufion, that no doubt could be entertained, either of the legality of the trials under review, or of the propriety of the manner in which the lords of jufticiary have exercised their difcretion upon the occafion. Upon a general confideration of the various aspects under which the question had been confidered, it would appear that the legality of these fentences would depend on the conftruction and operation of the act of 1703, by virtue of which the court of jufticiary was empowered, under the general term banishment, to pronounce fentence of transportation. By arguing upon the prefent cafes, as cafes of leafing making, his learned friend (the lord advocate) did not mean to affert, that even for that offence judgment of transportation might not be pronounced; but had only remarked, that, in his opinion, it was moft proper to prefer indi&ments for fedition, which made the delinquents liable to incur arbitrary punishment, according to the Scottish law. Previous to the paffing of the act of the reign of queen Anne, leafing-making, under various modifications, was made a capital offence by different acts of parliament. The ob3 B 2 ject ject of that ftatute was to take away the capital part of the crime, and to fubftitute fine, imprisonment, or banishment, or any corporal punishment, in its ftead. Upon an attentive confideration of the statute, to which he begged leave to refer the houfe, it would however appear, that the term banishment had not been used as pointing out a particular way in which a punishment was to be inflicted, but had only been stated as one among the many other modes of arbitrary punishments which the court of jufticiary were by that ftatute empowered to fubftitute, in lieu of the capital one which was formerly used. If, therefore, the punishment annexed to thefe crimes was arbitrary, the legislature muft certainly have meant to invest the judges with a difcretionary power; and as the parliament had frequently specified the exercife of the mitigated mode of banishment to which fome gentlemen had alluded, it would follow, that where no fuch specification had been made, the general power of banishing, according to the utmost extent of the term, was meant to be given to the judges of whom he fpoke. From a variety of precedents which had occurred from the year 1687 to 1754, it would appear that the term banishment had been used in the fenfe put upon it by his learned friend, (the lord advocate) and that the ftatute of Anne had adopted it in the fame manner. Having ftated the dif. ferent precedents, Mr. Pitt proceeded to remark, that in all the inftances which he had adduced, the fentence of banishment had been followed up by orders for tranfportation. The whole, therefore, of an hon. gentleman's argument proceeded on his having confounded the diftinction between capital and arbitrary punishments. An additional proof that the ftatute of Anne meant to bestow upon the judges the power of fubftituting the latter in lieu of the former, would appear ftill more evident from the cafe of Bailey, which happened foon after the ftatute was paffed. In order, however, to evade the force of this precedent, a violent attack had been made upon the privy-council by which the fentence was pronounced. For fome years previous to the revolution, especially during the reigns of Charles and James the fecond, he admitted that the proceedings of that body were juftly obnoxious to the people. But after the revolution, that body was not fuppofed to be inimical to the progrefs of civil liberty; but, on the contrary, during the reigns of king William and queen Anne, the members of it were always deemed the most zealous friends to the freedom of the nation. It had been argued against the authority of this precedent, that the parliament had deliberately fuffered the law which it paffed to be violated by this privy-council, as another punishment had been added to thofe which had been pointed out by the act. This argument, however, proceeded upon a mifconftruction of the act in question: the punishment was arbitrary; and it being fo, the pillory might be fuperadded to it without any violation of the law in queftion. At this distance of time it was impoffible we could precifely know the objects which the fentence agaiaft Bailey had in view; but the prefumption ought now furely to be, that the fentence was legal, and that confequently the court had the power of fuperadding corporal pu◄ nifhment and infamy to fine, imprifonment, and banishment. It might perhaps be contended, that all these remarks on leafing-making were fuperfluous, becaufe the prefent offences had been stated as inftances of fedition; and thence gentlemen had been pleased to conclude, that they were not at all punishable by the exiting law of Scotland. But if it could be feriously afferted, that no punishment was by that law provided for the numerous clafs of crimes which in England were punifhed either as mifdemeanors or libels, if that law was fo defective, and authority upon that fubject fo filent, then civil fociety, of which we were members, had the right, through its magiftrates and judges, to declare wherein fedition confifted -an offence which was permanent in its nature, however modified by circumstances, times, and feafons. On the contrary, however, he conceived, that by the common law of Scotland, all of these offences which were not included within the five ftatutes against leafing-making, were fedition, and confequently liable to incur arbitrary punishment. Thefe crimes of fedition were made treafon by the act 1584, and that act continued in force till the year 1707, when Scots and English treafons were affimilated to each other; and thus, according to the argument of the gentleman oppofite, in the interval between 1703 and 1707, the offences contained in the act of 1584 were either reduced to non-entities, or converted into leafing-making or fedition. It had been ftated as a very fingular phenomenon, that no recent inflance had offered itself in practice with regard to fedition in Scot land, and yet there had been two rebellions |