An Examination of the Trials for Sedition Which Have Hitherto
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This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. https://books.google.com THE LAWRENCE S. FLETCHER MEMORIAL FUND STANFORD SCHOOL OF LAW EXAMINATION OF TRIALS FOR SEDITION IN SCOTLAND. Edinburgh: Printed by Thomas and Archibald Constable, Fort DAVID DOUGLAS. London . HAMILTON, ADAMS, AND Co. Cambridge . MACMILLAN AND BOWE8. GLAsgow . JAMES MAGLEBOSE AND SONB. AN EXAMINATION OF THE TRIALS FOR SEDITION WHICH HAVE HITHERTO OCCURRED SCOTLAND BY THE LATE LORD COCKBURN ONE OF THE JUDGES OF THE COURT OF SESSION "When our ashes shall be scattered by the wiuds of heaven, the impartial voice of future times will rejadge your verdict." MDIB'S Speech to his Jury. VOLUME FIRST EDINBURGH: DAVID DOUGLAS MDCCCLXXXVIII [All rights reserved.] PREFATORY NOTE. Ox now revising the following pages, I am still of opinion that, from the interest of the subject, and the duty of never letting Braxfield and the years 1793 and 1794 be forgotten, they are not unworthy of publication. Indeed, if William and John Murray, the sons of Lord Henderland, and Lord Dunfermline, the nephew of Lord Abercromby, and George Swinton, the son of Lord Swinton, did not survive (and long may they do so), I rather think that I would publish it myself. My friend Swinton is of far less consequence than the other three, because his long residence in India has withdrawn him from the knowledge of these things. But, on the whole, it is better to wait. H. COCKBURN. llth August 1853. CONTENTS OF WOL. I. Page INTRoDUCTION, I.—Case of JAMES TYTLER, 7th January 1793, 95 II.-Case of John MoRTox, JAMEs ANDERson, and MALcolm CRAIG, Journeyman Printers, 8th, 9th, and 11th of January 1793, . 95 III.-Case of John ELDER and WILLIAM STEwART, 10th January 1793, . 109 IV.-Case of JAMEs SMITH and John MENNoNs, 4th February 115 1793, - W.—Cases of CAPTAIN Johnston and of SIMon DRUMMond, January and February 1793, and January 1794, 118 VI.-Case of WILLIAM CALLENDER, WALTER BERRY, and JAMEs Robertson, January, February, and March 1793, 128 VII.-Case of THoMAs MUIR, younger of Huntershill, August 144 1793, - - - VIII.-Case of THoMAs Fysh E PALMER, September 1793, 184 IX.-Case of ALEXANDER Scott, 3d February 1794, 221 X.—Case of WILLIAM SKIRVING, 6th and 7th of January 1794, 222 INTRODUCTION. BARON HUME says, in his Commentaries, that there was no trial for sedition in Scotland between the years 1703 and 1793. This is true ; but the state ment might have been carried much further ; be cause, so far as I (who, however, am no antiquary) can discover, there was never any trial for pure sedi tion in Scotland till 1793. The acts in which sedition would now be held to exist had no doubt occurred with great frequency, and been punished with bloody severity. But I do not see that they had ever been prosecuted merely as seditious. They had been dealt with as offences of a different char acter — chiefly as leasing-making and as treason — and were tried on different principles and with a view to a different result from what proper sedition would have been. Trials for sedition are the reme dies of a somewhat orderly age. They can scarcely occur in times so rude or so tyrannical as to exclude the idea that political intemperance may be a mere excess in the exercise of constitutional liberty. In the summary reasoning of barbarous power, every opposition to existing authority is high treason. It may be doubted whether even the word Sedi tion was known anciently as a legal term in our VOL. I. A 2 INTRODUCTION. law, at least in its present sense.1 But carrying the absence of trials for sedition no further back than 1703, then the fact is that during the ninety years between that period and 1793, our law of sedition had not been ripened by a single judicial case. In 1793 the memorable cases which arose out of the French Revolution began. These continued, but at considerable intervals, till 1802, and all the important ones were over in 1794. After 1802 there was a pause till 1817, when there were two trials more. These were followed by one in 1819, and by the case of Macleod in 1820 ; and then by that of Grant and others in 1848, since which time the sword has slept in its scabbard. The result is, that between 1703 and 1848,2 a period of 145 years, we have only had 23 charges of sedition, including all the outlawries and the affair of Captain Johnstone, which, though connected with sedition, was a matter of contempt. This handful of examples, most of them dis posed of during seasons singularly unfavourable for the calm exercise of judicial reason, constitute the whole body of our sedition law, in so far as it de pends on native precedent ; and none even of these 1 I only see two examples of it — both noticed by Pitcairn in his Criminal Trials, vol. i. p. 204, A.D. 1537, and vol. i. p. 330, A.D. 1543. But though the word be employed there, the thing is not our modern sedition. One of the charges is for exciting " Sedition and hisurrectuin between the neighbourhood and the inhabitants of the burgh of Air." The other is a complication of stabbing in court, invading magistrates, and convocation of the lieges. Mackenzie's Title on Sedition implies that his mind had not conceived our modern meaning of this term. 2 This, though written years ago, was revised in 1S-18. INTRODUCTION. 3 cases existed when the first trials began in 1793. So that, though diffidence certainly does not seem to have weakened the judges of those days, they had actually no precedent whatever to guide them. They were the makers of the law. Indeed, so entirely were they its very creators, that the whole law since evolved by their successors amounts to nothing beyond a general adoption of what was said and done by the judges of 1793 and 1794. It is very important to examine the spirit in which the law was thus made. There are no judi cial proceedings in which the public has a greater interest than in those touching sedition. Its law is intertwined with the exercise of public rights ; it is very liable to be abused ; and public excitement, which chiefly generates the offence, tends to involve numbers in its consequences. Now, What is Sedition ? considered, I mean, as a public crime, distinct from what the law of Eng land treats as libels upon individuals.1 It is only the offence as against the public, though this offence may be committed by libelling individual public officers as such, that is dealt with as sedition by the law of Scotland. To denote this public crime, our 1 And what a mercy it is to keep out of the English law of personal libel ! It has got some common sense put into it of late. But still its rules about theadmissibility and the rejection of truth, as a defence or as a palliation ; — about the different effects of different forms of proceeding, as by ex- ojflcio information, criminal information, or action of damages ; — about the principle of provocation to break the peace ; — and about various other matters, — make it so peculiar a mass that it can be used by no other legal system except as a beacon. See Edinburgh Renew, No. 53, Art. G (which I have no doubt was written by Brougham), for an exposition of it. 4 INTRODUCTION. law generally employs, and always should employ, the simple term Sedition. The law of England (as I understand) does not use this word as a nomen Juris by itself, but considers seditiousness as only a quality of some other offence. But this difference of expression makes no substantial difference on the thing itself. In one form or other, the law of both countries recognises seditiousness as criminal. "6* WHAT is IT ? Few have handled this matter without lament ing their incapacity to answer this question with much precision. Nor have they merely thought themselves baffled in trying to give a logical defini tion of it — that is, a definition which, while it com prehends all that ought to be included, excludes all that ought to be omitted ; but they seem in general to have been oppressed by their inability to furnish such an explanation as may suffice for the practical guidance of the lieges. It does not seem to me that they have been so unsuccessful as they suppose. But, apparently, they have mistaken the rule for its exemplifications and its application. They have, in fact, given the r1de, or at least its principles, accurately enough ; but they have very often confused it by bad illustrations. And people view special cases of sedition in such opposite lights, that wherever the example is in corporated with the definition as a part of it, the chance is that the definition will not be universally assented to. INTRODUCTION. 5 Lord Brougham says, in his evidence before the Commons Committee in 1834 : "I have never yet seen, nor have I been able myself to hit upon any thing like a definition of libel, or even of sedition, which possessed the qualities of a definition ; and I cannot help thinking that the difficulty is not accidental, but essentially inherent in the nature of the subject." He adds that the absence of definition creates no practical inconvenience. " People talk as if libel were the only thing not defined.